[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 3, 2005
No. 04-15125
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60014-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE JAMES COLLINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 3, 2005)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Willie James Collins pleaded guilty to one count of conspiracy to defraud
the United States, in violation of 18 U.S.C. § 286, and one count of making a false,
fictitious, or fraudulent claim against the United States, in violation of 18 U.S.C.
§ 287. He challenges his 37-month sentence on the grounds that the district court
violated United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by
enhancing his sentence based on facts that were neither proven to a jury nor
admitted by him. He also contends that the district court committed a Booker
statutory error by sentencing him under a mandatory guidelines regime.
The government concedes that the district court committed a Booker
statutory error. Because Collins gave a timely objection before the district court,
we review the error to determine whether it was harmless. See United States v.
Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). “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. 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. (marks and
quotations omitted). The government has not met its burden under this standard.
The only evidence the government points to in arguing that the Booker
statutory error was harmless is the fact that Collins was sentenced to the top of the
30 to 37 month sentencing-range produced by the guidelines. That evidence alone
2
is not enough to provide a “fair assurance that the sentence was not substantially
swayed by the error,” id. (marks and quotations omitted). Cf. United States v.
Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005) (holding the Booker
statutory error harmless in that case where the district court sentenced the
defendant to the top of the sentencing range and explicitly “considered sentencing
[the defendant] to 20 years, the maximum allowable under the statute of
conviction”). As a result, the government has failed to establish that the Booker
statutory error was harmless.1
Collins’ sentenced is VACATED and the case is REMANDED for
resentencing.
1
Because we find resentencing necessary due to the Booker statutory error, we need not
address Collins’ arguments regarding any alleged Booker constitutional error.
3