United States v. Julian Nicholas, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14948 JUNE 22, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 04-00026-CR-31DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIAN NICHOLAS, JR.
a.k.a. Junior,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 22, 2005)

Before TJOFLAT, DUBINA, and MARCUS, Circuit Judges.

PER CURIAM:
 Julian Nicholas, Jr., appeals his convictions and concurrent 98-month sentences

for conspiracy to import 500 grams or more of cocaine, in violation of 21 U.S.C. §§

952(a) & 960(a)(1), (b)(2)(B)(ii); importation of 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 952(a), 960(b)(2)(ii); and possession with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B)(ii). On appeal, Nicholas argues the district court erred by (1) admitting

statements he made to law enforcement following his arrest; (2) denying his motion

for judgment of acquittal based on insufficiency of the evidence; and (3) increasing

his sentence based on facts not charged in the indictment or found by the jury, in

violation of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004). Subsequent to the filing of the briefs in this case, the Supreme Court

extended its holding in Blakely to the federal Sentencing Guidelines. See United

States v. Booker, 542 U.S. ___, 125 S. Ct. 738 (2005).

We review the district court’s resolution of evidentiary issues for a clear abuse

of discretion. See United States v. Mendez, 117 F.3d 480, 484 (11th Cir. 1997). We

review challenges to the sufficiency of the evidence de novo, resolving all reasonable

inferences from the evidence in favor of the jury’s verdict. See United States v.

Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). The evidence is sufficient where a

reasonable trier of fact, choosing among reasonable interpretations of the evidence,

2
could find guilt beyond a reasonable doubt. United States v. Lluesma, 45 F.3d 408,

409-10 (11th Cir. 1995).

As for Nicholas’s constitutional, Blakely-based sentencing claim, he timely

raised it in the district court and his initial brief in this Court, and thus he is entitled

to preserved error review. See United States v. Paz, --- F.3d ---, 2005 WL 757876,

*2 (11th Cir. Apr. 5, 2005). We will reverse a Booker error only if the error was

harmful, meaning that the error affected substantial rights. Id.; see also United States

v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000) (reviewing preserved constitutional

challenge to a sentence de novo, but stating we “will reverse or remand only for

harmful error”).

After thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no error as to Nicholas’s convictions. As for his sentence,

although we find no constitutional error under Blakely, based on the intervening

decision in Booker, and more specifically, Booker’s remedial holding, we conclude

we must vacate and remand for resentencing, pursuant to the discretionary Sentencing

Guidelines scheme now required by Booker.

I.

The relevant facts are straightforward. On January 19, 2004, Nicholas was

arrested at the Orlando International Airport, after he met Milton Meade, a co-

3
conspirator who had just arrived on a plane from San Juan, Puerto Rico, carrying a

cooler filled with cocaine. Prior to trial, Nicholas moved in limine to exclude his

statement to law enforcement, made shortly after his arrest at the Orlando airport, that

the cooler seized from Meade “might” contain drugs. Nicholas argued that the

statement was barred both by Fed. R. Evid. 602 and 701, because he lacked personal

knowledge of the contents of the cooler, and by Fed. R. Evid. 403, because it was

unfairly prejudicial. The district court summarily denied the motion.

At trial, the government first presented the testimony of Olga Silva, a Senior

Inspector with the U.S. Customs Service who was assigned to interview passengers

arriving at the airport in San Juan, Puerto Rico, on January 19, 2004. After she

interviewed Meade, as he departed from a flight from Antigua to Puerto Rico, Silva

x-rayed a cooler Meade was carrying. Meade claimed it contained frozen fish. The

x-ray machine revealed that the fish contained a white powdery substance, which

subsequent field tests revealed to be cocaine.

Martin Reyes, a Special Agent with the U.S. Immigration and Customs

Enforcement Service (“ICE”), testified that, after meeting Meade in an interrogation

room at the San Juan airport and informing him of his Miranda1 rights, Meade told

1
Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S. Ct. 1602, 1619-26, 16 L. Ed. 2d 694
(1966).

4
Reyes that a man he knew as “Mello,” who lived in Antigua, had purchased his plane

ticket and provided him with the cooler containing the cocaine. Meade was supposed

to deliver the cocaine to a man in Orlando, Florida named “Junior,” and was promised

$2,000 to $4,000 for his services. Meade said that he had made similar deliveries

from Mello to Junior on three prior occasions, receiving between $2,000 and $4,000

for his services. Meade described Junior as a black male, approximately 5’8” tall,

with an Afro, glasses, and long, slim sideburns. During the interview, Meade

indicated to Special Agent Reyes that he would cooperate with the government.

Special Agent Reyes than arranged for Meade to take a later flight to Orlando, Florida

and make a controlled delivery of the cocaine.

Richard Mosquera, another ICE Special Agent, accompanied Meade on the

later flight from San Juan to Orlando. Special Agent Mosquera testified that, while

in San Juan, Meade made a number of “consensually monitored” calls to Mello in

Antigua, so authorities could “hear his supplier talking about the smuggling venture.”

In these calls, Meade indicated that he had been delayed by a problem with his

luggage, but was on a later flight. Meade’s source indicated that “Junior” would

meet Meade at the Orlando airport. Upon arrival in Orlando, Meade picked up his

baggage, including the cooler, and met the defendant, Nicholas, in an area near the

baggage claim. Special Agent Mosquera observed Nicolas talking on a cellular

5
phone when the initial contact with Meade took place. At that point, Meade tried to

hand Nicholas the cooler, but Nicholas refused to take it. Nicholas had “a little bit

of [a] conversation” with Meade, at which point Meade and Nicholas were both

arrested.

Meade testified at trial as a government witness, describing how he had

transported cocaine to the United States three times prior to his arrest for the instant

offense. On each of these trips, Mello gave Meade a cooler to transport to Junior in

Orlando. Also on each trip, Nicholas would give Meade between $50,000 and

$60,000 to take back to Antigua. On the third trip, Nicholas paid Meade part of his

$1,600 fee. Also during the third trip, Meade accompanied Nicholas to a Western

Union to wire money to Mello in Antigua. Finally, Meade stated that Nicholas was

talking to Mello on a cell phone when the two met, immediately prior to their arrest

in Orlando.

Special Agent Jeff Harmon of the Drug Enforcement Administration (“DEA”),

along with ICE Special Agent Saoud, interviewed Nicholas after his arrest on January

19, 2004. Harmon subsequently searched Nicholas’s residence, pursuant to

Nicholas’s consent. Harmon discovered the following: (1) two canisters of black axle

grease, which Harmon noted is sometimes used to mask the odor of cocaine; (2) a

cooler that was “almost an exact match” with the cooler Meade had carried; (3) a

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receipt indicating that Nicholas had spent $1,600 at a store in Orlando, and receipts

for three money orders totaling $1,043; (4) a receipt from a Foot Locker store for an

$861 purchase and a receipt from a Fifth Gear clothing store for a $2,360 purchase;

(5) a lease agreement indicating that Nicholas was the official tenant of the apartment

and the rent was $445 per month; and (6) a pay stub bearing Nicholas’s name and

dated December 20, 2002, indicating his year-to-date gross earnings were $6,640.

On cross-examination, Nicholas’s attorney asked Harmon a series of questions

about his post-arrest interview of Nicholas. Counsel first highlighted that Nicholas

was cooperative with the agents and agreed to be interviewed. Counsel then asked:

“And he [Nicholas] consistently denied any knowledge of the drugs [in the cooler],

correct?” to which Harmon responded that, when he asked Nicholas, “Besides fish,

what’s in the cooler?” Nicholas said, “It might be drugs.” Defense counsel did not

object to this answer, but instead decided to ask Harmon to clarify what Nicholas

might have meant by “it might be drugs.”

This line of questioning included again asking Harmon whether Nicholas said

he “knew” (as opposed to “guessed”) what was in the cooler. Defense counsel’s

cross-examination on this point culminated in the following question: “And he

[Nicholas] guessed that, ‘Oh well, it might be drugs,’ but he didn’t know the type,

correct?” When Harmon responded to this question in the affirmative, defense

7
counsel continued: “Wouldn’t it be a very logical assumption or a very logical guess,

if he had just been arrested by the D.E.A. at the airport, that -- and they’re asking you

about a cooler, that there might be narcotics in that cooler?” Harmon indicated that

he did not know what Nicholas was thinking or what his logic was at the time of the

interview to which defense counsel asked, “Well, you’re a D.E.A. agent, right?” The

cross-examination then proceeded on to other issues relating to Harmon’s duties as

a DEA agent.

As for chemical testing of the cocaine seized from the cooler, Juan Bruna, a

senior forensic chemist with the DEA, testified that the ICE sent him an evidence bag

via Federal Express which contained “four rectangular bricks” of a substance that

appeared to be cocaine. He performed mass spectroscopy on the substance and the

analysis indicated with “100 percent certainty” that the four bricks were cocaine.

Bruna further stated that, excluding the packaging, the cocaine powder in the four

bricks weighed a total of 3,992 grams. Over Nicholas’s objection to the chain of

custody, the government admitted the cocaine into evidence.

Finally, the government called Special Agent Saoud who testified that a typical

personal-use amount of cocaine is three to four grams, and that the quantity of

cocaine found on Meade was “a distribution amount.” During Saoud’s interview of

Nicholas, Nicholas consented to a search of his cellular phone. The results of this

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search indicated that Nicholas’s phone had been used to call a number which Meade

had also called that same day. Saoud said that the last person Nicholas called prior

to his arrest was Mello, and that Nicholas had made 42 such calls to Mello’s number

in Antigua on the day he was arrested.

After the government rested, Nicholas moved for a judgment of acquittal on all

three counts, arguing that because all of his activities occurred within the United

States, there was no evidence that he had conspired to import cocaine or had

personally imported cocaine. He also asserted that the government had presented no

evidence that he ever took physical possession of the cooler after he met Meade.

After the district court denied the motion, Nicholas rested without presenting any

evidence.

The jury subsequently found Nicholas guilty on all three counts. On the verdict

form, for each of the three counts, the jury indicated that Nicholas was responsible

for “500 grams or more” of cocaine. Nicholas then proceeded to sentencing.

According to the presentence investigation report (“PSI”), Nicholas was

responsible for 4.6 kilograms of cocaine, which yielded a base offense level of 30.

With this base offense level and a category I criminal history, Nicholas’s Guidelines

range was 97 to 121 months’ imprisonment. Nicholas filed a written objection,

9
making the general argument that Blakely rendered the Sentencing Guidelines

unconstitutional, but not challenging any of the PSI’s factual statements.

At the sentencing hearing, Nicholas reiterated his objection to the

constitutionality of the Guidelines. Acknowledging this Court’s decision in United

States v. Duncan, 381 F.3d 1070 (11th Cir. 2004), vacated and superseded on reh’g,

400 F.3d 1297 (11th Cir. 2005), the district court responded, “the Eleventh Circuit

has instructed me to continue to apply the guidelines until the Supreme Court resolves

the issue.” The district court also said that “District Judges in the Eleventh Circuit

[must] continue to abide by the guidelines.” The district court then adopted the PSI

calculations and found the Guidelines range to be 97-121 months.

Prior to the imposition of sentence, defense counsel made a “statement in

mitigation,” arguing for the imposition of a sentence below the Guidelines range on

two grounds: (1) because “Nicholas has no criminal record whatsoever,” and (2) “due

to the harshness of the Sentencing Guidelines.” After again noting that it lacked

discretion to sentence Nicholas outside of the Guidelines range, the district court

imposed three concurrent 98-month terms of imprisonment, followed by a 4-year term

of supervised release. This appeal followed.

II.

A.

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 First, Nicholas argues on appeal that the district court erred by admitting

Special Agent Harmon’s testimony that, during his post-arrest interview, Nicholas

indicated the seized cooler “might” contain drugs. Notably, Harmon made this

statement in response to defense counsel’s line of questioning during cross-

examination. As we have outlined above, defense counsel asked a series of questions

concerning the post-arrest interview of Nicholas. One of Nicholas’s theories of

defense was that he never took possession of the cooler and had no reason to know

it contained cocaine. The line of questioning about the post-arrest interview was in

support of this theory of defense. During the exchange, counsel specifically asked

whether Nicholas “consistently denied any knowledge of the drugs [in the cooler].”

Harmon responded that, when he asked Nicholas, “Besides fish, what’s in the

cooler?” Nicholas said, “It might be drugs.”

“It is a cardinal rule of appellate review that a party may not challenge as error

a ruling or other trial proceeding invited by that party.” Ford ex rel. Estate of Ford

v. Garcia, 289 F.3d 1283, 1293-94 (11th Cir. 2002) (citation omitted), cert. denied,

537 U.S. 1147 (2003); see also United States v. Jernigan, 341 F.3d 1273, 1289 (11th

Cir. 2003) (“[E]ven plain error review is unavailable in cases where a criminal

defendant ‘invites’ the constitutional error of which he complaints.” (quoting Ford,

289 F.3d at 1294)). Based on our review of the record, including the trial transcript,

11
we conclude that the invited-error doctrine precludes Nicholas’s argument. We note

that this rule is particularly applicable here, where Nicholas filed a pre-trial motion

in limine in which he sought to exclude the statement about the cooler, thus indicating

to us that defense counsel either was or should have been aware of this statement and

Agent Harmon’s knowledge of the statement. On this record, defense counsel’s

question invited the very response that he previously sought to exclude. Accordingly,

any purported error caused by Agent Harmon’s response was invited, and is not

subject to review upon appeal.

B.

As for Nicholas’s challenge to the sufficiency of the evidence, we also find no

error. Nicholas argues that Meade’s testimony was the only evidence that tied him

directly to the cocaine, and that the testimony was inconsistent, false, and self-

serving. The jury has the exclusive power to determine the credibility of witnesses,

and “the court of appeals may not revisit this question.” United States v. Chastain,

198 F.3d 1338, 1351 (11th Cir. 1999). Testimony is incredible as a matter of law

only when it includes “facts that [the witness] physically could not have possibly

observed or events that could not have occurred under the laws of nature.” United

States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) (internal quotations omitted)

(brackets in original).

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 Here, the issue of whether Meade’s testimony was consistent or credible was

plainly a question for the jury, which, it would appear, accepted Meade’s account as

accurate. The jury was free to choose among reasonable interpretations of the

testimony. See United States v. Peters, __ F.3d __, 2005 WL 673987, at *4, *6 (11th

Cir. Mar. 24, 2005). “Moreover, we are bound by the jury’s credibility

determinations, and by its rejection of the inferences raised by the defendant.” Id.

at *4. Simply put, we are satisfied that the government presented abundant evidence,

including Meade’s testimony, as well as a litany of circumstantial evidence

corroborating Meade’s testimony, to support Nicholas’s convictions.2

2
We easily dispense with Nicholas’s other conviction-related argument, that the district
court erred by admitting into evidence the cocaine and cooler, both of which were seized from
Meade following his and Nicholas’s arrests, and the cooler in which the co-conspirator transported
the cocaine. Nicholas argues the government did not establish a proper chain of custody for
admission of this evidence. We reject this claim without further discussion since gaps in the chain
of custody go to the weight of the evidence, rather than its admissibility. See United States v.
Roberson, 897 F.2d 1092, 1096 (11th Cir. 1990) (citing United States v. Lopez, 758 F.2d 1517,
1521 (11th Cir. 1985) (observing that “the adequacy of the proof relating to the chain of custody is
not a proper ground to challenge the admissibility of the evidence”)). Even if Nicholas’s argument
fairly could be read to concern the weight of this evidence (as opposed to its admissibility), we
remain unpersuaded. Under Fed. R. Evid. 901(a), “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Here, the
government’s evidence was sufficient under Rule 901(a) and the jury was free to resolve the issue
of chain of custody, and the various federal agencies’ handling of the cocaine and cooler, against
Nicholas. See United States v. Chaplinski, 579 F.2d 373, 374-75 (5th Cir. 1978) (“‘The adequacy
of the chain of custody was a factual question which the jury resolved against appellant(s).’”
(quoting United States v. Graham, 464 F.2d 1073, 1076 (5th Cir. 1972)); cf. Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all Fifth
Circuit decisions issued prior to the close of business on October 1, 1981).

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 C.

Finally, Nicholas argues his sentence violated Blakely, which the Supreme

Court has now extended to the federal Sentencing Guidelines in Booker. See 125 S.

Ct. at 738. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000), 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. at 490, 120 S. Ct. at 2362-63.

The Court subsequently applied the Apprendi rule in the context of Washington

State’s sentencing guideline scheme, clarifying 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 maximum he may impose without any additional

findings.” Blakely, 542 U.S. at ___, 124 S. Ct. at 2537 (citations omitted) (emphasis

in original).

Most recently, in Booker, the Supreme Court found “no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue” in Blakely. See 125 S. Ct. at 749. The Court held

14
that the mandatory nature of the Guidelines rendered them incompatible with the

Sixth Amendment’s guarantee to the right to a jury trial. Id. at 749-52. As we

recently observed, “[t]his constitutional holding ‘means that it is no longer possible

to maintain the judicial factfinding that Congress thought would underpin the

mandatory Guidelines system that it sought to create.’” United States v. Garcia, ---

F.3d ---, 2005 WL 845532, at *12 (11th Cir. Apr. 13, 2005) (quoting Booker, 125 S.

Ct. at 757).

In the instant case, we find no Sixth Amendment violation within the meaning

of Booker. The district court did not impose a sentence higher than that which the

indictment charged and the jury’s verdict authorized. Both the indictment and the

jury verdict indicated that each of the three counts involved “500 grams or more” of

cocaine. Nicholas’s offense level was calculated under U.S.S.G. § 2D1.1(c)(5),

which provides for an offense level of 30, rather than 26, when a controlled-substance

offense involves, inter alia, “[a]t least 3.5 KG but less than 5 KG of Cocaine (or the

equivalent amount of other Schedule I or II Stimulants).” At trial, the DEA forensic

chemist, Bruna, testified that the cocaine in Meade’s cooler weighed 3.992 kilograms.

Although the jury verdict stated the quantity of cocaine only as “500 grams or

more,” the jury’s finding of guilt could be based on only one quantity: 3.992

kilograms. This is so because the only evidence on amount presented to the jury,

15
through Bruna’s testimony, indicated the weight of the cocaine found in co-

conspirator Meade’s cooler, which was the 3.992-kilograms amount.3 Cf. United

States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (holding that in the context of an

Apprendi challenge based on drug quantity, “[w]e must affirm [the] sentence if the

record does not contain evidence that could rationally lead to a contrary finding with

respect to drug quantity”). Nicholas was not held responsible for any additional

cocaine. Moreover, he did not object to the PSI’s factual statement on quantity,

instead choosing to make only a general objection to the constitutionality of the

Guidelines. Even during his “statement of mitigation,” he urged the district court to

impose a sentence below the Guidelines range based on only these two grounds: (1)

his lack of a criminal history and (2) the harshness of the Guidelines.

On this record, where Nicholas was held responsible only for the quantity of

cocaine presented to the jury during Bruna’s testimony and he did not contest the

PSI’s statement of quantity at sentencing, there is no impermissible judicial fact

finding in violation of the Sixth Amendment.4

3
The PSI, which the district court adopted, indicated that Nicholas was responsible for
4.6 kilograms of cocaine. The discrepancy as to quantity between Bruna’s testimony and the PSI
had no effect on the calculation of Nicholas’s offense level since Bruna’s amount (3.992 kilograms)
and the probation officer’s amount (4.6 kilograms) both put Nicholas in the same offense level under
§ 2D1.1(c)(5).
4
This fact distinguishes the case from our recent decision in United States v. Paz, __
F.3d__, 2005 WL 757876 (11th Cir. Apr. 5, 2005), which involved a six-level enhancement to the

16
 Although there was no Sixth Amendment violation here, Nicholas was

sentenced under the pre-Booker mandatory Sentencing Guidelines. The district court

followed the correct sentencing procedure when it sentenced Nicholas, but “the

Supreme Court has now excised the mandatory nature of the Guidelines in Booker.”

United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (reviewing

Booker claim for plain error). In Shelton, we concluded that “it was [non-

constitutional] Booker error for the district court to sentence Shelton under a

mandatory Guidelines scheme, even in the absence of a Sixth Amendment

enhancement violation.” Id. at 1330-31 (citing United States v. Rodriguez, 398 F.3d

1291, 1301 (11th Cir. 2005) (“the [non-constitutional Booker] error is the mandatory

nature of the guidelines once the guidelines range has been determined”)). “As 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.”

Shelton, 400 F.3d at 1331.

Here, although we find no Sixth Amendment violation because the district

court did not increase Nicholas’s base offense level based on findings about drug

quantity, we find Booker error based on the remedial holding of the case. After

defendant’s offense level based on judicial fact finding as to amount of loss. Thus, Paz involved
constitutional Booker error.

17
adopting the PSI and its recommended Guidelines range, the district court treated the

resulting range as mandatory. Had the district court treated the Sentencing

Guidelines as advisory, it might have found that Nicholas was responsible for 3.9

kilograms of cocaine but nevertheless sentenced him below the Guidelines range for

this quantity based upon other factors, such as the two grounds Nicholas argued

during his “statement of mitigation.” The district court treated the Sentencing

Guidelines as mandatory, and on this record it is impossible to tell what sentence it

would have imposed under an advisory reading of the Sentencing Guidelines.

Moreover, the government has not has not met its burden to show that the

district court’s non-constitutional Booker error was harmless, under Kotteakos v.

United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). Cf. United States

v. Anderson, 289 F.3d 1321, 1326 (11th Cir. 2002), cert. denied, 537 U.S. 1195

(2003) (holding that Apprendi error, which is constitutional in nature, may be

harmless if the government proves beyond a reasonable doubt that such error did not

affect the defendant’s substantial rights); Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity or variance which does not affect substantial rights shall be

disregarded.”).5

5
The Kotteakos standard is less onerous than the “harmless beyond a reasonable doubt”
standard applicable to constitutional errors under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967). See Smith v. Singletary, 61 F.3d 815, 818 (11th Cir. 1995) (noting that, in

18
 “In cases involving preserved Booker error, the Government must show that

the mandatory, as opposed to the advisory, application of the guidelines did not

contribute to the defendant’s sentence.” United States v. Davis, No. 04-14585, slip

op. at 4 (11th Cir. May 4, 2005) (citing Paz, 2005 WL 757876 at *2). A

non-constitutional error is harmless unless it had a “substantial influence” on the

outcome or leaves one in “grave doubt” as to whether it had such effect. Kotteakos,

328 U.S. at 765, 66 S. Ct. at 1248. Under the Kotteakos standard, “non-constitutional

error is harmless if, viewing the proceedings in their entirety, a court determines that

the error did not affect the verdict, or had but very slight effect.” United States v.

Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004) (internal quotation marks and

citations omitted). “If one can say ‘with fair assurance . . . that the judgment was not

substantially swayed by the error,’ the judgment is due to be affirmed even though

there was error.” Id. (quoting Kotteakos, 328 U.S. at 764, 66 S. Ct. at 1248); see also

United States v. Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004) (en banc) (“Errors

do affect a substantial right of a party if they have a ‘substantial influence’ on the

outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome of

a case.” (quoting Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at 1248)).

federal habeas context, “less onerous” Kotteakos standard, rather than Chapman standard, controls).

19
 The district court was operating under the assumption that the Guidelines were

mandatory, and in this case we cannot tell what sentence it would have imposed,

particularly since Nicholas argued two grounds, unrelated to the issue of drug

quantity, as supporting a lower sentence: (1) his lack of a criminal history and (2) the

harshness of the Guidelines. On this record, the government has not met its burden

to show harmlessness, or no effect on substantial rights. Cf. Davis, slip op. at 6 (“We

simply do not know what the sentencing court would have done had it understood the

guidelines to be advisory rather than mandatory, and had properly considered the

factors in 18 U.S.C. § 3553(a)).

Because in this case, the government cannot establish the Booker non-

constitutional error was harmless, within the meaning of Kotteakos, we vacate

Nicholas’s sentence and remand for resentencing in light of the remedial holding of

Booker. No reversible error occurred during the guilt phase of the proceedings, and

we affirm Nicholas’s convictions.

AFFIRMED, IN PART, VACATED AND REMANDED, IN PART.

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