[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14305
JUNE 16, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-20195-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO M. ANDRADE-AVILA,
Defendant-Appellent.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 16, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Antonio Andrade-Avila appeals his 70-month sentence for importation into
the United States of 100 grams or more of heroin, 21 U.S.C. § 952(a). After we
ordered supplemental briefing in light of United States v. Booker, 543 U.S. __,
125 S.Ct. 738 (2005), and in light of the fact that Andrade had challenged his
sentence below under Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531
(2004), Andrade raised a challenge to the district court’s application of the federal
sentencing guidelines as mandatory.
We conclude that the district court did err. We have found, based on the
holdings in Booker, that the district courts could have made both a constitutional
and a statutory error in sentencing defendants when applying the sentencing
guidelines as mandatory. “‘The constitutional error is the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge;
the error is in the mandatory nature of the guidelines once the guidelines range has
been determined.’” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir.
2005) (quoting Rodriguez, 398 F.3d at 1300). The statutory error occurs when the
district court sentences a defendant “under a mandatory Guidelines scheme, even
in the absence of a Sixth Amendment enhancement violation.” Id. at 1330-31.
Because Andrade admitted importing more than 1000 grams of heroin, this case,
like Shelton, concerns Booker statutory error.
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
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not substantially swayed by the error,’ the [sentence] is due to be affirmed even
though there was error.” United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th
Cir. 2004) (citations omitted) (quoting Kotteakos v. United States, 328 U.S. 750,
762, 763, 66 S.Ct. 1239, 1246, 1248 (1946)). Because this is a Booker statutory
error case we will apply that standard, instead of the “beyond a reasonable doubt”
test, in determining whether the government has shown that the error is harmless.
United States v. Mathenia, __F.3d__, 2005 WL 1201455 at *2 (11th Cir. May 23,
2005). The non-constitutional harmless error standard is not easy for the
government to meet. It is as difficult for the government to meet that standard as it
is for a defendant to meet the third-prong prejudice standard for plain error review.
See, e.g., United States v. Paz, 405 F.3d 946, 948-49 (11th Cir. 2005). And,
indeed, the government has conceded that it cannot meet the burden because it
cannot point to anything in the record that indicates that the district court would
have sentenced Andrade in the same way under an advisory scheme. Therefore,
we vacate Andrade’s sentence and remand to the district court for resentencing
pursuant to Booker.
VACATED and REMANDED. 1
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To the extent any other appellant arguments are not rendered moot by our disposition,
they are rejected without need for discussion.
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