                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                                                      U.S. COURT OF APPEALS
                       ________________________         ELEVENTH CIRCUIT
                                                             July 11, 2005
                             No. 04-16101                THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 04-00261-CR-T-27-MAP

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SILVARIO HEREA-MARTINEZ,


                                                         Defendant-Appellant.

                       ________________________

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

                              (July 11, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Herea-Martinez, through counsel, appeals his 135-month

sentence for conspiracy and possession with the intent to distribute five kilograms

or more of cocaine while aboard a vessel subject to the United States jurisdiction,

in violation of 46 App. U.S.C. § 1903(a), (g), and (j) and 21 U.S.C.

960(b)(1)(B)(ii). On appeal, Herea-Martinez argues that the district court erred in

denying his request for a mitigating-role reduction. He also argues that the court

committed reversible error under Blakely v. Washington, 542 U.S. ___, 124 S. Ct.

2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. ___, 125 S.

Ct. 738, 160 L. Ed. 2d 621 (2005), when it (1) denied his request for a mitigating-

role reduction on the basis of facts neither alleged in the indictment nor admitted

by him, and (2) sentenced him under a mandatory Guidelines system.

Mitigating-Role Reduction

      “[A] district court’s determination of a defendant’s role in the offense is a

question of fact to be reviewed under the clearly erroneous standard.” United

States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc). A defendant

who is “plainly among the least culpable of those involved in the conduct of a

group,” is entitled to a four-level reduction for his minimal role in the offense.

U.S.S.G. § 3B1.2(a), cmt. n.4. A defendant “who is less culpable than most other

participants, but whose role could not be described as minimal” is entitled to a

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two-level reduction for his minor role. U.S.S.G. § 3B1.2(b), cmt. n.5. “The

proponent of the downward adjustment . . . always bears the burden of proving a

mitigating role in the offense by a preponderance of the evidence.” De Varon, 175

F.3d 939.

      In De Varon, we established a two-part test for whether a mitigating-role

reduction is appropriate. See id. at 940-45. In applying the first prong, “the

district court must measure the defendant’s role against the relevant conduct for

which [he] has been held accountable.” Id. at 940. “[W]here the relevant conduct

attributed to a defendant is identical to [his] actual conduct, [he] cannot prove that

[he] is entitled to a minor [or minimal] role adjustment simply by pointing to some

broader criminal scheme in which [he] was a minor participant but for which [he]

was not held accountable.” Id. at 941. “[W]hen 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. Critically, the first prong of De Varon is often

dispositive. Id. at 945. “Only if a defendant can establish that [he] played a

relatively minor role in the conduct for which [he] has already been held

accountable . . . should the district court grant a downward adjustment for minor

role in the offense.” Id. at 944.

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      In the second prong of the De Varon analysis, the district court may assess a

defendant’s relative culpability vis-a-vis “other participants in the relevant

conduct.” Id. at 944. “The conduct of participants in any larger criminal

conspiracy is irrelevant.” Id. However, “[t]he fact that a defendant’s role may be

less than that of other participants engaged in the relevant conduct may not be

dispositive of role in the offense, since it is possible that none are minor or

minimal participants.” Id. The district court has “considerable discretion in

making the fact-intensive determination.” United States v. Boyd, 291 F.3d 1274,

1277-78 (11th Cir. 2002).

      Here, the record supports the district court’s findings that the conduct

attributed to Herea-Martinez was identical to his actual conduct and that he did not

demonstrate that he was less culpable than his codefendants. Accordingly, we

conclude that the district court did not clearly err, and we affirm the district court’s

denial of Herea-Martinez’s request for a mitigating-role reduction.

Blakely/Booker

      When an applicant has timely objected to the application of the Sentencing

Guidelines, we review his Blakely/Booker claim “in order to determine whether

the error was harmless.” United States v. Mathenia, No. 04-15250, slip. op. at

2328 (11th Cir. May 23, 2005). “[C]onstitutional errors are harmless where the

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government can show, beyond a reasonable doubt, that the error did not contribute

to the defendant’s ultimate sentence.” Id.

       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. at 2328-29 (quotations and alterations omitted). “It is as difficult for the

government to meet that standard as it is for a defendant to meet the third-prong

prejudice standard for plain error review.” Id. at 2329; see also United States v.

Rodriguez, 398 F.3d 1291, 1301 (11th Cir.) (describing the defendant’s burden

under plain-error analysis), cert. denied, (U.S. June 20, 2005) (No. 04-1148).

       In Blakely, the Supreme Court struck down an upward departure imposed

under Washington state sentencing guidelines that was based solely on judicial

factfinding, clarifying that the relevant “statutory maximum’ for Apprendi1

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at ___,

124 S. Ct. at 2534-38. In Booker, the Supreme Court extended this holding to the



       1
         Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435
(2000) (holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”).

                                                  5
Federal Sentencing Guidelines. 543 U.S. at ___, 125 S. Ct. at 756. To cure the

Sixth Amendment violation in Booker, the Supreme Court (1) exercised two

statutory provisions that reinforced the mandatory nature of the Guidelines, (2)

held that the Guidelines were advisory, and (3) determined that sentences should

be reviewed on appeal for reasonableness, considering the 18 U.S.C. § 3553(a)

factors.2 Id. at ___, 125 S. Ct. at 764.

       We have held that there could be two distinct Booker errors – (1) the error

of imposing a sentence enhancement based on judicial findings that go beyond the

facts admitted by the defendant or found by the jury, or “constitutional error”; and

(2) the error of being sentenced under a mandatory guidelines system, or “statutory

error.” See Mathenia, No. 04-15250, slip op. at 2328. When there is no

constitutional Booker error, this court still must determine whether the non-

constitutional Booker error in sentencing a defendant under the Guidelines as

mandatory constituted reversible error. See United States v. Gallegos-Aguero, No.


       2
        The factors set forth in § 3553(a) include, among others: “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed to (A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; (3) the kinds of sentences available; . . . (6) the need to
avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct; and (7) the need to provide restitution to any victims of the
offense.” 18 U.S.C. § 1353(a).

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04-14242, slip op. at 2308 (11th Cir. May 18, 2005) (holding that “[t]he use of the

guidelines as mandatory [is] error, even in the absence of a Sixth Amendment

violation”).

      In the preserved error context where the government bears the burden of

proving that the statutory error is harmless, we have affirmed a defendant’s

sentence, despite the Booker error when the district court stated its sentences

would be the same even if the Supreme Court affirmed the decision in Booker and

held that “under Blakely, the United States Sentencing Guidelines [were]

unconstitutional . . . .” See Mathenia, No. 04-15250, slip. op. at 2328-30.

      Although Herea-Martinez suggests that the district court committed a

constitutional Booker error in denying his request for a mitigating-role reduction

on the basis of facts neither alleged in the indictment nor admitted by him, (1) by

its own terms Booker refers only to factors that increase a defendant’s sentence,

see Booker, 543 U.S. at ___, 125 S. Ct. at 756; and (2) even if Booker applied to

sentence reductions, the sentencing court denied Herea-Martinez’s request for a

role reduction on the basis of acts that Herea-Martinez admitted during the

change-of-plea hearing. Accordingly, we conclude that the district court did not

commit a constitutional Booker error.




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      In regard to the non-constitutional Booker error, because the district court

sentenced Herea-Martinez at the bottom of his guideline range and did not offer an

indication that its sentence would have been the same if the Guidelines were not

mandatory, the government cannot show “with fair assurance” that the mandatory

nature of the Guidelines did not substantially sway Herea-Martinez’s sentence.

See Mathenia, No. 04-15250, slip op. at 2329. Therefore, the statutory Booker

error is not harmless.

      For the foregoing reasons, we affirm the district court’s denial of Herea-

Martinez’s request for a mitigating-role reduction, but we vacate Herea-Martinez’s

sentence and remand this case for resentencing consistent with Blakely and

Booker.

      AFFIRMED in part and VACATED and REMANDED in part.




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