United States v. Franklin M. Castellanos-Rodriguez

[DO NOT PUBLISH]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
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vacate Castellanos-Rodriguez’s sentence and remand this case for resentencing
consistent with this opinion.
VACATED and REMANDED.
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