                                                     [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                   FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                     ________________________   ELEVENTH CIRCUIT
                                                      NOVEMBER 29, 2005
                            No. 05-11044               THOMAS K. KAHN
                       Non-Argument Calendar               CLERK
                      ________________________

                 D. C. Docket No. 04-80073-CR-DTKH

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                versus

SAUL GUSTAMA,

                                                   Defendant-Appellant.


                      ________________________

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

                           (November 29, 2005)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Saul Gustama appeals his 12-month, 1-day sentence for wire fraud in

violation of 18 U.S.C. §§ 1343 and 2. Although Gustama waived his Sixth

Amendment rights pursuant to his plea agreement, this appeal asks us first to

consider (1) whether he may still appeal his sentence on the ground that the district

court committed statutory error when it sentenced him pursuant to a mandatory

guidelines system; and then (2) whether any such error was harmless. We find that

he may appeal and that the error was not harmless. We VACATE and REMAND

for resentencing.

                                I. BACKGROUND

      A federal grand jury returned a seven-count indictment against Gustama,

charging him with wire fraud in violation of 18 U.S.C. §§ 1343 and 2. Gustama

had defrauded a number of individuals in an e-Bay sales scheme in which he

promised to sell certain items, accepted payment, and then never shipped the items.

The probation officer determined that Gustama had obtained a total of $77,161

from various individuals.

      Pursuant to a plea agreement, Gustama pled guilty to count Seven of the

indictment. According to the plea agreement, Gustama “waive[d] any

constitutional challenge to the Sentencing Guidelines, waive[d] indictment and trial

by jury on all findings relevant to sentencing, and agree[d] that the Court [would]



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make all such findings by a preponderance of the evidence based on any reliable

evidence, including hearsay.” R1-28 at 2.

      During the plea colloquy, the district court questioned Gustama about his

plea agreement, relating the constitutional waiver to Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004), and explaining Gustama’s constitutional rights in

detail. The district court particularly explained Gustama’s right to jury fact-

finding, the preponderance of evidence standard, and the possibility that the

Federal Sentencing Guidelines might soon be deemed unconstitutional by the

Supreme Court. Gustama indicated that he understood the waiver provision and

agreed to it. After these warnings, the district court accepted the plea.

      Using the 2002 Sentencing Guidelines, the probation officer set Gustama’s

offense level at 15 with a criminal history level of I. At the sentencing hearing,

Gustama successfully challenged the amount of money used to calculate his

offense level and had it reduced to 13. This gave him a guideline range of 12-18

months. The maximum sentence under the statute was 20 years imprisonment.

      The district court sua sponte raised the issue of Booker,1 which was then

pending. The court stated that the sentence it was going to impose was greater than

the sentence it would have chosen had the guidelines been advisory. The court



      1
          543 U.S. ___, 125 S. Ct. 738 (2005).

                                                 3
then delayed the imposition of sentence for 30 days, in anticipation of the Supreme

Court’s ruling in Booker, and sentenced Gustama to 12 months and one day,

pursuant to the Sentencing Guidelines.

      After the Supreme Court handed down its decision in Booker, the district

court reconvened the sentencing hearing, but concluded that, although a judgment

had not been entered, because more than ten days had passed since the sentence

had been stated, it lacked jurisdiction to change the sentence under Federal Rule of

Criminal Procedure 35. The court also stated that, if it had still had jurisdiction, it

would have given Gustama a sentence of supervised release, emphasizing that it so

stated “[s]o, there [could be] no way that this error [could] be construed as

harmless.” R4 at 101.

      On appeal, Gustama contends the district court sentenced him pursuant to a

mandatory guidelines scheme, contrary to the Supreme Court’s decision in Booker,

and our decision in United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005). The

government responds that he waived his right to appeal in his plea agreement.

                                  II. DISCUSSION

A. Waiver of Appeal

      We review the question of whether a defendant has waived his right to

appeal his sentence de novo. United States v. Benitez-Zapata, 131 F.3d 1444, 1446



                                            4
(11th Cir. 1997). “A plea agreement is, in essence, a contract between the

government and a criminal defendant.” United States v. Howle, 166 F.3d 1166,

1168 (11th Cir. 1999). Waiver in a plea agreement is enforceable when the

Government can show “either: (1) the district court specifically questioned the

defendant about the waiver during the plea colloquy, or (2) the record clearly

shows that the defendant otherwise understood the full significance of the waiver.”

United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.) (per curiam), cert.

denied, __ U.S. __, 125 S. Ct. 2279 (2005). Where a dispute arises concerning the

meaning of the language in the agreement, we resort to an analysis of the terms of

the plea agreement according to objective standards. United States v. Rewis, 969

F.2d 985, 988 (11th Cir. 1992). Any ambiguities must be construed against the

government. United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990).

      As is permitted under Blakely, Gustama waived his Sixth Amendment rights

when he signed the plea agreement. See 542 U.S. at 310, 124 S. Ct. at 2541. The

plea agreement stated that he “waive[d] any constitutional challenge to the

Sentencing Guidelines, waive[d] indictment and trial by jury on all findings

relevant to sentencing, and agree[d] that the Court [would] make all such findings

by a preponderance of the evidence based on any reliable evidence, including

hearsay,” and the district court explained the provision in detail. R1-28 at 2. The



                                          5
record clearly indicates that Gustama understood the significance of his waiver.

      As we have clarified, however, Booker claims are not limited to

constitutional objections. Shelton, 400 F.3d at 1331 (statutory error under “Booker

error exists when the district court misapplies the Guidelines by considering them

as binding as opposed to advisory.”) The plea agreement does not state that

Gustama cannot make a statutory challenge as to the mandatory guidelines.

Because a plea agreement must be construed strictly against the government, we

find that although Gustama may not challenge his sentence on constitutional

grounds, he may challenge it under Booker on statutory grounds.

B. Booker Claim

      This issue was raised in the district court and is therefore preserved. See

United States v. Reese, 397 F.3d 1337, 1337 (11th Cir. 2005) (per curiam). We

review a defendant's preserved Booker claim on appeal de novo, but reverse only

for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per

curiam) (citation omitted). As noted, a Booker “statutory error occurs when the

district court sentences a defendant ‘under a mandatory [g]uidelines scheme, even

in the absence of a Sixth Amendment enhancement violation.’” United States v.

Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (per curiam). Booker statutory

errors are subject to a less demanding harmless error test than are constitutional



                                          6
errors. Id. at 1292. “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. If one can say with fair assurance that the

sentence was not substantially swayed by the error, the sentence is due to be

affirmed even though there was error." Id. (citations, omissions, and alterations

omitted). The government has the burden of proof. See id.

      In this case, the district court erred in sentencing Gustama under a

mandatory guidelines system. At sentencing, the district court stated that “the

sentence [it was] imposing under the guidelines would not be the sentence [it]

would impose if [it] had the discretion prior to the enactment of the guidelines.”

R3 at 83. At the post-Booker hearing, the district court stated that its sentence

against Gustama was in error, but that it lacked the jurisdiction to change it. R4 at

101. Further, the district court also clarified that if it had had jurisdiction over the

case at that time, its “intent would [have been] to put Mr. Gustama on supervised

release for a period of time.” Id. In light of the district court’s definitive

statements, both during sentencing and when it recalled the parties post-Booker, it

is clear that the error had an effect on sentencing. The Booker statutory error was,

therefore, harmful.

                                 III. CONCLUSION



                                            7
      Gustama appeals his sentence on the ground that the district court committed

statutory error when it sentenced him pursuant to a mandatory guidelines system.

We find that he preserved his right so to appeal, that there was error, and that that

error was harmful. Accordingly, we VACATE and REMAND for resentencing.




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