[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-10368 JAN 5, 2007
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 99-08125-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ARROYA,
Defendant,
WANDA TIRADO,
GARLAND HOGAN,
GARY PIERCE,
ZANE BALSAM,
ALAN RICHARD LEWIS,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Southern District of Florida
_________________________
(January 5, 2007)
ON REMAND FROM THE
UNITED STATES SUPREME COURT
Before BIRCH, KRAVITCH and FARRIS,* Circuit Judges.
PER CURIAM:
Wanda Tirado, Garland Hogan, Gary Pierce, Zane Balsam, and Alan
Richard Lewis were convicted of bilking investors out of their money in a
fraudulent viatical investment company scheme. At sentencing, each defendant
challenged their sentences under Apprendi v. New Jersey, 530 U.S. 466 (2000).
The court overruled the objections and sentenced the defendants separately to the
following terms of imprisonment: 262 months for Tirado; 324 months for Hogan;
240 months for Pierce; 360 months for Balsam; and 151 months for Lewis. Each
appealed their convictions and sentences, again raising the Apprendi claim.1 Upon
review, we affirmed the convictions and sentences. United States v. Arroya, No.
02-10368 (11th Cir. Jun. 24, 2004).
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
1
Hogan neither raised the issue in his initial brief nor adopted it from another appellate brief.
Following our decision affirming the convictions and sentences, each defendant moved for rehearing.
We granted Hogan’s motion to adopt the motions, arguments and pleadings of his codefendants in
connection with that motion. Contrary to Hogan’s assertion, the permission to adopt arguments filed
after the opinion issued and in connection with a motion for rehearing does not relate back to the
issues raised in the initial briefs on appeal. Nevertheless, because we conclude that there was Booker
error at sentencing, we exercise our discretion and address the issue as if it was preserved. United
States v. Rivera Pedin, 861 F.2d 1522, 1527 n.9 (11th Cir. 1988).
2
Thereafter, the Supreme Court issued its decision in United States v.
Booker, 543 U.S. 220 (2005), holding that the Sixth Amendment required that any
fact that increased a defendant’s sentence beyond the maximum authorized by the
facts established by a jury verdict must be admitted by the defendant or proven to
a jury beyond a reasonable doubt. The Court further concluded that the
Sentencing Guidelines were not mandatory, but were advisory and were one factor
to consider in imposing a reasonable sentence in light of the sentencing factors in
18 U.S.C. § 3553(a).
Tirado, Hogan, Pierce, Balsam, and Lewis filed petitions for certiorari, each
raising Booker issues. The Supreme Court granted cert. and vacated and
remanded the appeals in light of the Booker decision. On remand, after a thorough
review of the record, we re-affirm the convictions for the reasons stated in our
earlier opinion. We now turn to the sentences imposed.
By raising Apprendi at sentencing and on direct appeal, the Booker
argument has been preserved, and we review the claim de novo. United States v.
Paz, 405 F.3d 946, 948 (11th Cir. 2005); United States v. Dowling, 403 F.3d 1242,
1246 (11th Cir.), cert. denied, 126 S.Ct. 462 (2005). In conducting this review, we
will vacate and remand unless the government can show that the error was
harmless. United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005);
3
Paz, 405 F.3d at 948. To show that a constitutional error was harmless, the
government must show that the error did not affect the defendant’s substantial
rights, or in other words, “where it is clear ‘beyond a reasonable doubt that the
error complained of did not contribute to the [sentence] obtained.’” Mathenia, 409
F.3d at 1291-92. To show statutory harmless error, the government faces a less
demanding standard but must show that, viewing the proceedings in their entirety,
the error had no effect or a very slight effect on the sentence. Id. Our precedent
on this burden is clear: the government must show that the court would not have
imposed a lesser sentence under an advisory guidelines system. United States v.
Glover, 431 F.3d 744, 749-50 (11th Cir. 2005).
Here, the government has not met its burden. As to all defendants, the court
made factual findings that went beyond those found by the jury. Moreover, in
each case, the court applied the guidelines in a mandatory fashion.
After a thorough review of the record, we conclude that, in light of the
court’s statements at sentencing, the government cannot show that the Booker
error was harmless. Accordingly, we AFFIRM the convictions and we VACATE
and REMAND for resentencing in accordance with Booker.
4