                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT
                                               U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                              May 27, 2005
                              No. 04-14309                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D.C. Docket No. 04-20210-CR-JEM

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

     versus

FRANKLIN MANUEL CASTELLANOS-RODRIGUEZ,

                                                 Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                         Southern District of Florida
                        _________________________

                                (May 27, 2005)

                 ON PETITION FOR PANEL REHEARING

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      After we filed our opinion in this case, the appellant Franklin M.

Castellanos-Rodriguez (“Castellanos-Rodriguez”) filed a petition for

rehearing/suggestion of rehearing en banc. After directing the Government to file

a response to the petition and reviewing the Government’s response, we grant the

petition for rehearing, withdraw our previous opinion, and substitute the following

in lieu thereof.

      Castellanos-Rodriguez appeals his 46 month sentence for importation of

100 grams or more of heroin into the United States, in violation of 21 U.S.C. §

952(a). On appeal, Castellanos-Rodriguez maintains that the district court erred in

(1) not granting his request for a minor role reduction, and (2) sentencing him

using a base offense level that was determined using facts that were not charged in

the indictment, stipulated to by him, or found by a jury beyond a reasonable doubt,

as required by United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

Minor Role Reduction

      “[We have] long and repeatedly held that a district court’s determination of

a defendant's role in the offense is a finding of fact to be reviewed only for clear

error.” United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

The Sentencing Guidelines provide for a four-level decrease in offense level if the

defendant was a “minimal participant,” a two-level decrease if the defendant was a

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“minor participant,” and a three-level decrease for cases in between the two. See

U.S.S.G. § 3B1.2. The defendant “bears the burden of proving a mitigating role in

the offense by a preponderance of the evidence.” De Varon, 175 F.3d at 939.

      We have stated that

      The district court’s ultimate determination of the defendant’s role in
      the offense should be informed by two principles discerned from the
      Guidelines: first, the defendant’s role in the relevant conduct for
      which [he] has been held accountable at sentencing, and, second, [his]
      role as compared to that of other participants in [his] relevant
      conduct.

Id. at 940. We have held that “when a drug courier’s relevant conduct is limited

to [his] own act of importation, a district court may legitimately conclude that the

courier played an important or essential role in the importation of those drugs.”

Id. at 942-43.

      Analyzing the first principle from De Varon, the district court attributed

only the amount of drugs actually seized by law enforcement, and admitted by

Castellanos-Rodriguez, 476.9 grams of heroin, in calculating his base offense

level. See id. at 940. Further, the record indicates that Castellanos-Rodriguez’s

position in the conspiracy was as intricate as the other participants. Although

Mayra, a female whom he had met at his beauty salon in Boston, contacted him

about importing the drugs, and Manual, the man Mayra put in touch with



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Castellanos-Rodriguez, got him the drugs, Castellanos-Rodriguez was responsible

for swallowing the pellets of heroin and cocaine, transporting them into the United

States, and was to receive a substantial monetary sum, $4,000, for doing so.

Castellanos-Rodriguez did not provide any evidence of how Mayra or Manual

contributed significantly more to the conspiracy than did he; thus, he did not meet

his burden of proving that he was a minor participant. Therefore, the district court

did not clearly err in finding that, since Castellanos-Rodriguez’s relevant conduct

as a drug courier was limited to his own act of importation, he was not entitled to a

minor role reduction. See De Varon, 175 F.3d at 940, 942-43.

Fifth and Sixth Amendments

      A constitutional objection that is timely, “receive[s] the benefit of preserved

error review.” United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001).

Castellanos-Rodriguez’s constitutional objection is entitled to preserved error

review because he argued, in his timely objections to the PSI and again at

sentencing, that the district court violated his Sixth Amendment rights under

Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), by using an amount

of drugs in determining his base offense level. The record demonstrates that

Castelanos-Rodriguez raised a Booker constitutional error issue in a timely and

appropriate way in the district court. Although his constitutional error argument

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clearly fails, we must also review whether there was statutory error. See United

States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).

      After reviewing the sentencing transcript, we are convinced that the district

court considered the guidelines mandatory. When it did so it erred. As we held in

Shelton, a Booker error occurs when a district court sentences a defendant “under a

mandatory Guidelines scheme[.]” Id. at 1330-31. Castellanos-Rodriguez

preserved a Blakely/Booker objection in the district court, so the government bears

the burden to prove the error was harmless. United States v. Paz, 405 F.3d 946,

948 (11th cir. 2005) (per curiam). A non-constitutional error “is harmless if,

viewing the proceedings in their entirety, a court determines that the error did not

affect the [sentence], ‘or had but very slight effect.’” United States v. Hornaday,

392 F.3d 1306, 1315 (11th Cir. 2004) (citations omitted) (quoting Kotteakos v.

United States, 328 U.S. 750, 762, 763, 66 S. Ct. 1239, 1246, 1248 (1946)). If we

cannot “say ‘with fair assurance . . . that the [sentence] was not substantially

swayed by the error,’” the sentence must be vacated. See id. at 1315-16.

Moreover, the Government does not argue in its brief that Castelanos-Rodriguez

waived the issue of statutory error. Because it is not clear to us from the record

that the error is harmless, and the government has failed to meet its burden, we




                                          5
vacate Castellanos-Rodriguez’s sentence and remand this case for resentencing

consistent with this opinion.

      VACATED and REMANDED.




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