                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                            JUNE 28, 2005
                             No. 04-15212                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D.C. Docket No. 04-20278-CR-DLG

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

     versus

MANUEL IVAN ZORRILLA,

                                                     Defendant-Appellant.

                      __________________________

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


                              (June 28, 2005)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Manuel Ivan Zorrilla appeals his concurrent 63-month sentences for

conspiracy to possess with intent to distribute 100 grams or more of heroin, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), and 846 (“Count 1”); and

possession with intent to distribute 100 grams or more of heroin, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B)(i) (“Count 2”). Zorrilla argues on appeal that the

district court committed reversible error in sentencing him under the then-

mandatory United States Sentencing Guidelines (“federal guidelines”), and based

on facts that neither were charged in his indictment, nor admitted by him, in light

of 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). For the reasons set forth more fully below, we vacate and remand.

      A federal grand jury returned an indictment against Zorrilla, charging him

with the above-referenced offenses. This indictment did not include a drug

amount, other than the statutory amount of 100 grams or more of heroin. Zorrilla

subsequently pled guilty to both counts in his indictment, without the benefit of a

plea agreement. During Zorrilla’s plea colloquy, he agreed that the government

could show that he was responsible for 100 grams or more of heroin, but he

disputed the exact amount of heroin proffered by the government, that is, 494




                                         2
grams. At the conclusion of this hearing, the court determined that Zorrilla’s plea

was free and voluntary, and it adjudicated him guilty.

      Prior to sentencing, a probation officer prepared a presentence investigation

report (“PSI”), which included the following description of Zorrilla’s offense

conduct. After receiving information from a confidential informant (“CI”), that a

person in Miami named Juan Sanchez-Lemus was offering to sell heroin, agents

with the Drug Enforcement Administration (“DEA”) directed the CI to initiate a

drug transaction with Sanchez-Lemus. The CI and Sanchez-Lemus, thereafter,

agreed that a courier from Detroit, Michigan, who actually was an undercover

agent (“UC”), would travel to Miami with a partial payment of $16,000, in

exchange for Sanchez-Lemus supplying an unidentified amount of heroin. The

UC met with the CS and Sanchez-Lemus at a mall in Miami, at which time

Sanchez-Lemus, who was accompanied by a person later identified as Zorrilla,

told the UC that Zorrilla would conduct the transaction. The UC then followed

Zorrilla to a vehicle in the mall’s parking lot, in which Zorrilla handed the UC a

small shopping bag containing a diaper with a brown powder inside of it. A

subsequent laboratory analysis by the DEA revealed that 494.9 grams of heroin

were recovered from this diaper.




                                          3
      In addition to this offense conduct, the PSI grouped together Zorrilla’s two

offenses, pursuant to U.S.S.G. § 3D1.2(d); determined that he was responsible for

494.9 gram of heroin; and set his offense level at 28, pursuant to U.S.S.G.

§ 2D1.1(c)(6) (offense level applicable for offenses involving at least 400 grams,

but less than 700 grams, of heroin). The probation officer also recommended a

three-level downward adjustment, pursuant to U.S.S.G. § 3E1.1, for acceptance of

responsibility. With an adjusted offense level of 25, and a criminal history

category of II, Zorrilla’s resulting guideline range was 63 to 78 months’

imprisonment.

      Zorrilla objected to the PSI’s failure to recommend an adjustment for his

minor role in the offense, pursuant to U.S.S.G. § 3B1.2(b), arguing that he was the

least culpable person involved in the conspiracy. Zorrilla also generally objected

to the district court’s use of the federal guidelines, in light of the Supreme Court’s

decision in Blakely. The government responded that (1) no minor-role adjustment

was warranted because Zorrilla played a substantial role in the conspiracy, and

(2) we had directed district courts to continue sentencing defendants under the




                                          4
federal guidelines unless and until the Supreme Court reached a contrary

conclusion in then-pending cases.1

       On September 28, 2004, at sentencing, Zorrilla renewed his objection to the

PSI’s failure to recommend a § 3B1.2(b) adjustment, which the government again

opposed. The district court overruled this objection, determining that Zorrilla was

a substantial participant in a conspiracy involving a significant amount of drugs.

Zorrilla also again raised a summary objection to the court’s use of the federal

guidelines, pursuant to the Supreme Court’s decision in Blakely. The district

court overruled Zorrilla’s Blakely objection, citing to this Court’s decision in

Reese. After adopting the PSI’s finding and confirming that neither party objected

to a sentence at the low end of the guideline range, the court ultimately sentenced

Zorrilla to 63 months’ imprisonment, 4 years’ supervised release, and a $200

special assessment fee.

       Zorrilla argues on appeal, albeit in the portion of his brief labeled “summary

of his argument,” that preserved Blakely/Booker error occurred because the court

(1) sentenced him based on the then-mandatory federal guidelines, and



       1
          Prior to the Supreme Court’s issuance of its decision in Booker, we had determined that
Blakely did not apply to the federal guidelines. See United States v. Reese, 382 F.3d 1308, 1312
(11th Cir. 2004), judgment vacated by Reese v. United States, 543 U.S. ___, 123 S.Ct. 1089, 160
L.Ed.2d 1058 (2005).

                                                5
(2) determined that he was responsible for 494.9 grams of heroin. Zorrilla also

contends that these errors were not harmless because, given the opportunity to

consider factors other than the federal guidelines, the court could have imposed a

lesser sentence.

      As a preliminary matter, the government is arguing that Zorrilla has

abandoned his constitutional Booker argument by only including it in the

summary portion of his appeal brief. An appellant’s brief must contain his

argument, including (1) the appellant’s contentions and reasons for them,

(2) citations to relevant portions of the record and to supporting legal authority,

and (3) the applicable standard of review for each issue. See Fed.R.App.P.

28(a)(9). In addition, we have determined that “a party seeking to raise a claim or

issue on appeal must plainly and prominently so indicate. Otherwise, the

issue—even if properly preserved at trial—will be considered abandoned.” See

United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

      In Jernigan, we concluded that the appellant abandoned his challenge to a

ruling under Fed.R.Crim.P. 404(b), by only making four passing references to the

evidence at issue, each of which was embedded under different topical headings

and was “undertaken as background to,” or buried in, the claims the appellant

expressly advanced. See id. We explained that its requirement that claims be

                                          6
“unambiguously demarcated” “stems from the obvious need to avoid confusion as

to the issues that are in play and those that are not.” See id. Similarly, in Kelliher

v. Veneman, 313 F.3d 1270 (11th Cir. 2002)—the case on which the government

relies in arguing waiver—we concluded that the appellant waived an appellate

claim by only mentioning it in the argument section of his initial brief, and by

making no arguments on its merits. See id. at 1274 n.3

      In the instant case, Zorrilla has set forth in the section of his brief labeled

“summary of the argument” the district court’s alleged errors under Booker, while

he explained in the “argument” section of his brief why these errors were

preserved and not harmless. However, unlike the facts in Jernigan and Kelliher,

Zorrilla has notified the government and this Court what claims are being

advanced, as well as providing supporting arguments for these claims. Cf.

Jernigan, 341 F.3d at 1283 n.8; Kelliher, 313 F.3d at 1274 n.3. Thus, although

Zorrilla ideally should have placed all of his arguments in the “argument” section

of his brief, we do not conclude that he has abandoned any of them by not arguing

them on appeal.

      Zorrilla also properly preserved both his constitutional and non-

constitutional Booker claims in the district court by citing to Blakely in his

objections to the PSI and at sentencing. See United States v. Dowling, 403 F.3d

                                           7
1242, 1246 (11th Cir. 2005) (concluding that a defendant either must (1) refer to

the Sixth Amendment; (2) Apprendi v. New Jersey, 530 U.S. 224, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000), or another other related case; (3) assert his right to have

the jury decide the disputed fact; or (4) raise a challenge to the role of the judge as

factfinder to preserve a Blakely/Booker claim). Because Zorrilla timely raised a

Blakely objection in the district court, we review his Blakely/Booker claim on

appeal de novo, but reverse only for harmful error. See United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005) (citation omitted). Under harmless-error review,

the government carries the burden of proof. Id.

      In Apprendi, the Supreme Court held 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.” Id., 530 U.S. at 490, 120 S.Ct. at 2362-63. Before Zorrilla’s sentencing

hearing, the Supreme Court revisited that rule in Blakely, in the context of

Washington state’s sentencing guideline scheme, and clarified that “the ‘statutory

maximum’ for Apprendi 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. . . . In other words, the relevant ‘statutory maximum’ is not the

maximum sentence a judge may impose after finding additional facts, but the

                                           8
maximum he may impose without any additional findings.” Blakely, 542 U.S. at

___, 124 S.Ct. at 2537 (emphasis in original).

      Applying these principles, the Supreme Court held that Blakely’s

sentence—which was enhanced under the state guidelines based on the sentencing

court’s additional finding by a preponderance of the evidence that Blakely

committed his kidnaping offense with deliberate cruelty—violated the Sixth

Amendment. Id. at ___, 124 S.Ct. at 2534-38. In a footnote, however, the Court

explicitly remarked that “[t]he Federal Guidelines are not before us, and we

express no opinion on them.” Id. at ___ n.9, 124 S.Ct. at 2538 n.9.

      While the instant case was pending on appeal, the Supreme Court issued its

decision in Booker, finding “no distinction of constitutional significance between

the Federal Sentencing Guidelines and the Washington procedures at issue” in

Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional

question left open in Blakely, the Supreme Court held that the mandatory nature of

the federal guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending

its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its

rationale in Apprendi that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

                                          9
established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Id. at ___, 125 S.Ct. at 756.

      In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby

effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125

S.Ct. at 764. Thus, the guidelines range is now advisory; it no longer dictates the

final sentencing result but instead is an important sentencing factor that the

sentencing court is to consider, along with the factors contained in 18 U.S.C.

§ 3553(a). Id. at ___, 125 S.Ct. at 764-65.

      Following the Supreme Court’s decision in Booker, and on remand, we

re-examined in United States v. Reese, 397 F.3d 1337 (11th Cir. 2005), a

defendant’s guideline sentence that had been enhanced, over objection, because

the defendant had possessed a firearm in connection with another felony offense.

Id. at 1337. Concluding that the defendant’s sentence was in violation of the Sixth




                                         10
Amendment, we vacated and remanded his sentence and ordered resentencing

consistent with the Supreme Court’s opinions in Booker. Id. at 1338.

      In Paz, we similarly examined a Blakely/Booker challenge to a guideline

enhancement based on the district court’s factual finding on an amount of loss

involved in an offense. Paz, 405 F.3d at 947. We determined that the defendant’s

sentence was erroneous because (1) it was based on judicially determined facts

that were not admitted by the defendant, and (2) it was enhanced under a

mandatory guidelines system. Id. at 948. Moreover, we concluded that the

government could not show that these errors were harmless because the sentencing

transcript clearly showed that, had the district court treated the federal guidelines

as advisory, the defendant’s term of imprisonment would have been shorter. Id. at

948-49. We, therefore, vacated and remanded Paz’s sentence for resentencing

consistent with Booker. Id. at 949.

      Here, the court set Zorrilla’s base offense level at 28, pursuant to U.S.S.G.

§ 2D1.1(c)(6), based on the judicially determined fact that Zorrilla was responsible

for 494.9 grams of heroin. Moreover, Zorrilla did not admit to this specific drug

amount during his plea colloquy. Nevertheless, Zorrilla admitted this drug amount

at sentencing by not disputing this fact in his PSI. See United States v. Shelton,

400 F.3d 1325, 1330 (11th Cir. 2005) (concluding that sentence enhancement

                                          11
based on drug quantity did not violate Booker where the defendant did not dispute

the facts in the PSI); United States v. Burge, No. 04-13468, slip op. at 2088-89

(11th Cir. May 2, 2005) (rejecting Booker challenge under plain-error review

because the defendant admitted facts relating to his relevant conduct by

abandoning at sentencing his objections to various factual statements in the PSI).

Thus, the court’s determination of drug amount did not result in a Sixth

Amendment violation under Booker.

      As the government concedes, however, the court sentenced Zorrilla with the

understanding that the federal guidelines were mandatory, instead of advisory. A

non-constitutional Booker error, therefore, occurred. See Shelton, 400 F.3d at

1330-31 (concluding that 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”).

      We have determined that there are two harmless error standards for Booker

errors, dependent on whether the error is constitutional or statutory. See United

States v. Mathenia, No. 04-15250, manuscript op. at 5 (11th Cir. May 23, 2005).

We explained in Paz—an appeal involving a constitutional Booker error—that,

when a constitutional Booker error occurs, the government only may establish that

it was harmless by showing, under a heightened standard, that “it is clear beyond a

                                         12
reasonable doubt that the error complained of did not contribute to the sentence

obtained.” Paz, 405 F.3d at 948 (internal quotation and marks omitted). On the

other hand, in Mathenia, we determined that

       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.

Mathenia, No. 04-15250, manuscript op. at 5-6 (internal quotations and marks

omitted).2

       We further explained in Mathenia that “[t]he non-constitutional harmless

error standard is not easy for the government to meet. 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 6. Nevertheless, we concluded

that the government had met this burden by citing to a statement by the district

court that, if the Supreme Court determined that the federal guidelines were

unconstitutional as mandatorily applied, the district court “nonetheless [would]

consider the guidelines as—for their persuasive value or as advisory, and the

       2
         Phrasing this test conversely, we also have explained that non-constitutional error is
harmless unless it “resulted in actual prejudice because it had substantial and injurious effect or
influence in determining the [result].” See United States v. Gallegos-Aguero, No. 04-14242,
manuscript op. at 4 (11th Cir. May 18, 2005) (quoting United States v. Guzman, 167 F.3d 1350,
1353 (11th Cir. 1999)); see also United States v. Petho, No. 04-15412, manuscript op. at 3 (11th
Cir. May 18, 2005) (same).

                                                13
sentence [the court] would impose would be the same.” Id. at 7. We, therefore,

concluded in Mathenia that the government “demonstrated with fair assurance that

the district court’s error of applying the guidelines in a mandatory fashion did not

affect, or had but a slight affect, on [the defendant’s] ultimate sentence.” Id. at 8.3

       Because this case involves only a non-constitutional Booker error, we must

apply the test discussed in Mathenia, instead of the “beyond a reasonable doubt”

test discussed in Paz. The district court did not state that it would have imposed a

lighter sentence, but for the mandatory nature of the federal guidelines. However,

the court explained that it was following our instruction in Reese that it continue

to apply the then-mandatory federal guidelines. The court, without objection, also

sentenced Zorrilla at the bottom of his guideline range. But see United States v.

Fields, No. 04-12486, manuscript op. at 8-10 (11th Cir. May 16, 2005)

(concluding, under plain-error review, that the fact that the defendant was

sentenced at the bottom his mandatory guideline range, without more, is

insufficient evidence for the defendant to satisfy the prejudice prong).




       3
          In reaching this conclusion in Mathenia, we cited to our decision in United States v.
Robles, No. 04-13598, manuscript op at 8-10 (11th Cir. May 10, 2005), in which we
concluded—under the more stringent harmless error test for constitutional Booker error—that the
error was harmless where the court unequivocally stated that its sentence would be the same even
if the federal guidelines only were advisory. See Mathenia, No. 04-15250, manuscript op. at 7-8.

                                              14
       Moreover, as the government concedes, unlike the facts in Mathenia and

Robles, it cannot cite to evidence in the record showing that the court would have

imposed an identical sentence if it had been proceeding under an advisory-

guideline system. Because the record does not show “with fair assurance that the

sentence was not substantially swayed by the error,” we conclude that the

government has not shown that Zorrilla’s substantial rights were not violated, and,

thus, it has not proven that the Booker error was harmless.4 See Mathenia, No. 04-

15250, manuscript op. at 5-6; see also United States v. Davis, No. 04-14585,

manuscript op. at 5-6 (11th Cir. May 4, 2005) (concluding that, despite the district

court’s grant of a motion for a downward departure for substantial assistance,

pursuant to U.S.S.G. § 5K1.1, the government could not show that the court’s

mandatory application of the guidelines in sentencing the defendant was harmless,

because the § 5K1.1 motion only gave the court limited discretion in considering

the defendant’s assistance). We, therefore, vacate and remand for resentencing

consistent with the Supreme Court’s decision in Booker.

       VACATED AND REMANDED.




       4
        The government concedes this point and agrees that the case should be remanded for
resentencing. We appreciate the candor of government counsel.

                                              15
