[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 14, 2005
                              No. 04-15194                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

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

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                   versus

PABLO ANDRES ANGULO HINCAPIE,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 14, 2005)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     Pablo Andres Angulo Hincapie appeals his 135-month sentence for
possession with intent to distribute cocaine, in violation of 21 U.S.C. §

960(b)(1)(B)(ii) and conspiracy to possess with intent to distribute cocaine, in

violation of 21 U.S.C. §§ 960(b)(1)(B)(ii). He argues that: (1) the district court

erred in failing to grant him a minor role reduction pursuant to U.S.S.G. § 3B1.2;

and (2) the district court violated Blakely v. Washington, 

, 124 S. Ct.

2531(2004), and United States v. Booker, 543 U.S. ___, 

(2005), and

committed harmful error when it sentenced him under mandatory Sentencing

Guidelines.

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

factual finding reviewed for clear error. United States v. De Varon, 

,

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. 

The standards for reviewing the application of the Guidelines which existed pre-

Booker are applicable post-Booker. United States v. Crawford, 

,

1178 (11th Cir. 2005). “A sentencing court under Booker still must consider the

Guidelines, and, such consideration necessarily requires the sentencing court to

calculate the Guidelines sentencing range in the same manner as before Booker.”

United States v. Shelton, 

, 1332 n.9 (11th Cir. 2005).

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



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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

21 U.S.C. § 960(b)(1) and he is entitled to a mitigating-role adjustment under

U.S.S.G. § 3B1.2, then his base offense level may not be set higher than level 30.

U.S.S.G. § 2D1.1(a)(3)(B)(i).

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

in drug courier importation case , the district court first must measure the

defendant’s role in the offense against the relevant conduct for which he has been

held accountable. 

. Under this prong of the DeVaron

test, the amount of drugs may be dispositive. 

Next, the court may

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

conduct. 

The district court may consider other participants in the

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

evidence.” 

of participants in any larger criminal conspiracy is



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irrelevant.” 

where the defendant is a drug courier, relevant factual

considerations include, but are not limited to: (1) the quantity of drugs; (2) the fair

market value of those drugs; (3) the amount of compensation due to or 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. 

       The district court correctly found that the relevant conduct for which

Hincapie was held accountable was the conspiracy to possess and possession with

intent to distribute approximately 2,629 kilograms of cocaine, a very large quantity

of drugs. The district court correctly assessed his role in connection with this

scheme, and not in connection with any larger conspiracy. Twelve men on two

boats comprised the entire transaction before the district court: presumably two

captains, two mechanics, and eight crewmembers. The men moved nearly two tons

of cocaine in 133 bales between the two vessels. Hincapie offered no evidence to

show that his involvement was significantly less important than that of any other

member who off-loaded this large amount of cocaine. Given these facts, we cannot

hold that the district court’s finding that Hincapie was not entitled to a mitigating-

role reduction was clearly erroneous.

      Next, Hincapie argues that the district court erred in sentencing him based



                                            4
on a mandatory Sentencing Guidelines system. Because Hincapie raised his

Booker objection to the district court’s application of the Guidelines at his

sentencing, we review the issue de novo, and reverse “only if any error was

harmful.” United States v. Paz, 

, 948 (11th Cir. 2005) (per curiam)

(citation omitted). To find a constitutional error harmless beyond a reasonable

doubt, we must determine whether or not the error contributed to the sentence

obtained. 

confronted with a statutory, and non-constitutional,

error, we employ a less demanding standard of review than typical harmless error

analysis. United States v. Mathenia, 

, 1292 (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 a 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.” 

(quotations and citations omitted) (alterations

and omissions in original). This standard is as difficult for the government to meet

“as it is for a defendant to meet the third-prong prejudice standard for plain error

review.” 

the Supreme Court held that the “Sixth Amendment right to trial

by jury is violated where under a mandatory guidelines system a sentence is



                                            5
increased because of an enhancement based on facts found by the judge that were

neither admitted by the defendant nor found by the jury.” United States v.

Rodriguez, 

, 1298 (11th Cir.), cert. denied,    U.S.   , 

(2005) (citing Booker, 543 U.S. at ___, 125 S. Ct. at 749-56). Despite the

absence of a Sixth Amendment violation, the district court nevertheless can

commit error under Booker by applying the Guidelines as mandatory. 

. We explained that “[a]s a result of Booker’s remedial

holding, Booker error exists when the district court misapplies the Guidelines by

considering them as binding as opposed to advisory.” 

      The district court sentenced Hincapie based on the Sentencing Guidelines,

which it regarded as mandatory and thus committed statutory Booker error. The

government has the burden to show that this error had but a slight effect on

Hincapie’s sentence. The district court sentenced Hincapie to the lowest sentence

under the applicable Guideline range without issuing alternative sentences or

making other statements indicating its sentence would be similar on remand. The

government cannot meet its burden and has conceded as much. Accordingly, we

vacate his sentence and remand for resentencing.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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