                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 24, 2005
                              No. 04-14194                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 04-00109-CR-T-27-TBM

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                   versus

ALBINO OBREGON,

                                                         Defendant-Appellant.


                        ________________________

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

                              (August 24, 2005)


Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     Albino Obregon appeals his 135-month sentence for two drug charges. On
appeal, Obregon argues that the district court: (1) clearly erred by denying his

request for a mitigating-role reduction; and (2) committed reversible error, in light

of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by applying the United States

Sentencing Guidelines as mandatory.

                                 I. BACKGROUND

      Obregon and his codefendants were charged with: (1) possession with intent

to distribute five or more kilograms of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46

U.S.C. app. §§ 1903(a) and (g) (Count One); and (2) conspiracy to possess with

intent to distribute five or more kilograms of cocaine while aboard a vessel subject

to the jurisdiction of the United States, in violation of §§ 1903(a), (g), (j) and §

960(b)(1)(B)(ii) (Count Two). At a plea hearing before a magistrate judge,

Obregon pled guilty to both counts. According to the facts admitted by Obregon at

the plea hearing, he was a crew member on board the “Siete Mares,” a

Colombian-flagged fishing vessel that was used to transport approximately 133

bales of cocaine from Colombia to a point in the eastern Pacific Ocean, where the

drugs were transferred to another vessel, and, ultimately, seized by the U.S. Coast

Guard. According to the presentence investigation report (“PSI”), the two vessels



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involved in the offense carried a total of ten crew members and two captains.

      The probation officer grouped Obregon's offenses together and set his base

offense level at 38, pursuant to U.S.S.G. § 2D1.1(c), based on a finding that 2,629

kilograms of cocaine were involved in the offense. The probation officer then

reduced Obregon's offense level by three, pursuant to U.S.S.G. § 3E1.1(a) and (b),

for acceptance of responsibility. At the sentencing hearing, the parties agreed that

Obregon had met the requirements for the safety-valve reduction, and, therefore,

pursuant to U.S.S.G. § 2D1.1(b)(6), his offense level was reduced by an additional

two levels. Given a total offense level of 33 and a criminal history category of I,

Obregon's Guideline imprisonment range was 135 to 168 months.

      Obregon objected to the PSI, arguing, inter alia, that he was entitled to a

mitigating-role reduction, and, therefore, pursuant to § 2D1.1(a)(3), his base

offense level should not have exceeded 30. According to Obregon, he was

significantly less culpable than the other participants in the offense because his

only role in the drug-smuggling operation was that of a cook aboard one of the

vessels.

      At the sentencing hearing, Obregon objected that the Guidelines were

unconstitutional, in light of Blakely. The district court overruled this objection,

finding that the Guidelines were constitutional, both on their face and as applied to



                                           3
the facts of Obregon's case. The district court also overruled Obregon’s

mitigating-role objection, finding that he was not significantly less culpable than

the other participants in the offense. While acknowledging that there were likely

other, unidentified individuals who organized and financed the smuggling

operation, the court found that all crew members, including Obregon, were “an

essential aspect” of the smuggling operation, and that each of them assisted in the

loading and unloading of the drugs. R3 at 16. The court then sentenced Obregon

to a total of 135 months of imprisonment. The court noted that it was imposing a

low-end sentence in light of, inter alia, the defendant's age and the fact that such a

sentence was “substantial” and “adequately addresse[d] the seriousness of

[Obregon’s] conduct.” Id. at 19.

                                   II. DISCUSSION

A. Mitigating-Role Reduction

      First, we must decide whether the district court erred by denying Obregon’s

request for a mitigating-role reduction. Obregon argues that he was entitled to the

reduction because: (1) his role in the offense was that of a cook/crew member

aboard one of the vessels; (2) he did not have an ownership interest in the

drugs; (3) he received little compensation compared to the substantial value of the

drugs; and (4) his participation was minimal compared to the other unidentified



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individuals who planned and organized the smuggling operation. Because he was

entitled to this reduction, Obregon argues, his base offense level should not have

exceeded 30.

      A sentencing court’s determination of a defendant’s role in an offense

constitutes a factual finding that is reviewed for clear error. See United States v.

Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant

bears the burden of proving, by a preponderance of the evidence, that he is entitled

to a role reduction. See id. at 939.

      The Guidelines provide for a four-level reduction for a defendant who acts

as a minimal participant, a two-level reduction for a minor participant, and a three-

level reduction for cases falling in between the minor and minimal level. U.S.S.G.

§ 3B1.2. A minimal participant is a defendant who is “plainly among the least

culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2, comment.

(n.4), while a minor participant means any participant “who is less culpable than

most other participants, but whose role could not be described as minimal,”

U.S.S.G. § 3B1.2, comment. (n.5). Moreover, when a defendant is convicted under

§ 960(b)(1), and he is entitled to a mitigating-role adjustment under § 3B1.2, his

base offense level may not be set higher than level 30. U.S.S.G. § 2D1.1(a)(3).

       To determine whether a defendant is entitled to a mitigating-role reduction,



                                           5
the district court must first measure the defendant’s role in the offense against the

relevant conduct for which he has been held accountable. See Rodriguez De

Varon, 175 F.3d at 940. In cases where the defendant is a drug courier, relevant

factual considerations include, but are not limited to: (1) the amount of drugs

involved; (2) the fair market value of the drugs involved; (3) the amount of

compensation received by the courier; (4) the courier’s equity interest in the drugs,

if any; (5) the courier’s role in planning the scheme; and (6) the courier’s role, or

intended role, in the distribution of the drugs. See id. at 945. Second, the court

may compare the defendant’s culpability to that of other participants in the relevant

conduct, but “only to the extent that they are identifiable or discernable from the

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

conspiracy is irrelevant.” Id.

      We conclude that the district court did not clearly err by denying Obregon’s

request for a mitigating-role reduction because: (1) it correctly assessed Obregon’s

role in connection with the conduct for which he was held accountable, and not in

connection with some larger criminal enterprise; and (2) Obregon failed to

demonstrate that he was less culpable than the majority of identifiable participants

in the offense. Accordingly, we affirm the district court’s denial of the

mitigating-role reduction.



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B. Booker Error

      Obregon next argues that, in light of Booker, the district court committed

reversible error by applying the Guidelines as mandatory. Because the district

court should have considered the other factors enumerated in 18 U.S.C. § 3553(a)

when imposing sentence, Obregon argues that he is entitled to a remand for

resentencing.

      Obregon is entitled to preserved-error review because he raised a timely

constitutional objection to the sentencing enhancements in the district court, and

we should remand for resentencing unless (1) no error was committed, or (2) the

error was harmless. See 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. Mathenia, 409 F.3d 1289, 1292 (11th Cir.

2005) (per curiam) (citations, alterations, and internal quotations omitted). “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, alterations, and internal quotations omitted).

      In Booker, the Supreme Court held that Blakely applies to the Guidelines,

and reaffirmed its holding from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.



                                            7
Ct. 2348, 2362-63 (2000), that, “[a]ny fact (other than a prior conviction) which is

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

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.” Booker, 543 U.S. at ___, 125 S.

Ct. at 746, 756. Because the Court determined that it was the mandatory nature of

the Guidelines that implicated the Sixth Amendment right to a jury trial, it held

that, in order to cure the Sixth Amendment violation while preserving

congressional intent, the following two provisions of the Sentencing Reform Act

must be severed and excised: 18 U.S.C. § 3553(b)(1) (which made the Guidelines

mandatory and binding on federal courts), and 18 U.S.C. § 3742(e) (which

established the appellate standards of review for sentences). Booker, 543 U.S.

at ___, 125 S. Ct. at 756-57. By severing these two provisions, the Supreme Court

made the Guidelines “effectively advisory.” Id. at ___, 125 S. Ct. at 757.

      A district court potentially commits two types of error, under Booker, when

it sentences a defendant pursuant to a mandatory guideline scheme:

(1) constitutional error resulting from a Sixth Amendment violation; and (2)

non-constitutional, or statutory, error resulting from applying the guidelines as

mandatory. See United States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir.

2005). In Shelton, we held that the defendant’s Sixth Amendment rights were not



                                          8
violated because he had admitted the facts used to enhance his sentence by failing

to object to the statements contained in the PSI. Id. at 1330. Nonetheless, we held

that the district court committed statutory error by applying the Guidelines as

mandatory, rather than advisory. Id.

      We have held that both statutory and constitutional Booker errors were

harmless where the district court expressly indicated that it would have imposed

the same sentence under an advisory guideline regime. See Mathenia, 409 F.3d

at 1292-93 (statutory error); United States v. Robles, 408 F.3d 1324, 1327-28 (11th

Cir. 2005) (per curiam) (constitutional error). Conversely, in Paz we held that

constitutional Booker error was not harmless where the court indicated that it

would have imposed a lesser sentence under an advisory guideline scheme. 405

F.3d at 948-49. Because the government bears the burden of demonstrating that a

statutory Booker error was harmless, the defendant’s case must be remanded for

resentencing where the effect of the error cannot be determined. See United States

v. Davis, 407 F.3d 1269, 1271-72 (11th Cir. 2005) (per curiam).

      Upon review of the PSI and the sentencing transcript, and upon

consideration of the briefs, we discern reversible error. The district court

committed statutory Booker error by applying the Guidelines as mandatory, and

the government has failed to meet its burden of demonstrating that the error was



                                           9
harmless. Accordingly, we vacate Obregon’s sentence and remand to the district

court for resentencing.

                                III. CONCLUSION

      Obregon appeals his 135-month sentence for possession with intent to

distribute cocaine and conspiracy to possess and distribute cocaine. As we have

explained, the court did not err when it denied Obregon’s request for a mitigating-

role reduction of his sentence, but the district court did commit reversible error

when it applied the Guidelines as mandatory. Accordingly, we AFFIRM in part

and VACATE and REMAND in part.




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