                                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT

                       -------------------------------------------          FILED
                                    No. 04-16532                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                              Non-Argument Calendar                     January 27, 2006
                      -------------------------------------------- THOMAS K. KAHN
                                                                           CLERK
                 D.C. Docket No. 04-00080-CR-3-001-LAC


UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                        versus


WILLIAM J. ABRACZINSKAS,


                                                       Defendant-Appellant.

            ----------------------------------------------------------------
                 Appeal from the United States District Court
                      for the Northern District of Florida
            ----------------------------------------------------------------

                                (January 27, 2006)


Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.

PER CURIAM:
        William J. Abraczinskas appeals his 15-month sentence, imposed pursuant

to his guilty plea, for escape, 18 U.S.C. §§ 751(a) & 2.1 Abraczinskas contends

that he is due to be resentenced in the light of United States v. Booker, 125

S.Ct. 738 (2005), because the district court imposed his sentence under a

mandatory Sentencing Guidelines scheme. We vacate Abraczinskas’s sentence

and remand for resentencing consistent with Booker.

        Abraczinskas timely raised an objection based on Blakely v. Washington,

124 S.Ct. 2531 (2004). Thus, we review his Booker claim for harmless error. See

United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).2 Under Booker,

two kinds of sentencing errors exist: “one is constitutional and the other is

statutory.” United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005). This case

involves the latter. The government concedes that the district court committed a

statutory Booker error when it sentenced Abraczinskas under a mandatory

guideline system. See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.

2005). The government then bears the burden of showing that the statutory error

was harmless. See Mathenia, 409 F.3d at 1292.



  1
   Abraczinskas was serving 121-month concurrent sentences for money laundering convictions
when he escaped.
  2
      We need not address Abraczinskas’s alternate argument that he established plain error.

                                                 2
      A statutory Booker error is harmless only if the government shows that the

error did not affect the sentence, or had only a very slight effect. Id. “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. (citations and

internal quotation marks omitted). But we have written that the statutory Booker

harmless error standard is not easy to meet: “[i]t 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.” Id. And here, the government not only concedes

that a statutory Booker error occurred, but concedes that it cannot show that this

error was harmless. Moreover, the district court made no statement that it would

have imposed the same sentence regardless of whether the guidelines were

advisory or mandatory. See Mathenia, 409 F.3d at 1292 (concluding that statutory

Booker error was harmless where district court announced it would have imposed

same sentence if guidelines were unconstitutional as applied mandatorily).

      Some facts exist in the record that suggest the district court might have

imposed the same sentence under an advisory guidelines scheme. Abraczinskas

moved for a downward departure, based on his allegation that he had escaped out

of medical necessity. The district court denied Abraczinskas’s request, stating that

“the circumstances under which both defendants were apprehended do not suggest

                                          3
anything that would support a downward departure or anything in mitigation of

the sentence in this case.”3 The district court then sentenced Abraczinskas to 15

months’ imprisonment, at the midpoint of the 12 to 18-month guideline sentencing

range. See Mejia-Giovani, 416 F.3d 1323, 1327 (11th Cir. 2005) (stating, in

preserved-error case, that sentence in midpoint of guideline range was one factor

suggesting that statutory Booker error was harmless). The court noted that it was

imposing this sentence “due to the lack of aggravating or mitigating factors.” And

the district court stated that it “carefully considered” the factors in 18 U.S.C.

§ 3553(a) in fashioning the sentence: the court specifically determined that the

sentence (1) met “the general goals of punishment . . . for your criminal conduct of

escape” and (2) acted as a “deterrence to others who might engage in similar

conduct.”4

             But the government concedes it cannot show that the district court’s

statutory Booker error is harmless; the government bears the burden of

demonstrating harmless error. See Mathenia, 409 F.3d at 1292. We are unable to


      3
          Abraczinskas had escaped with codefendant Jose Ignacio Macia.
  4
   Also, the district court ordered the sentence to run consecutively to Abraczinskas’s undischarged
prior sentence, as required by U.S.S.G. § 5G1.3(a). Although 18 U.S.C. § 3584(a) provides that a
district court may impose a sentence to run concurrently or consecutively to an undischarged
sentence, the district court indicated that it considered the § 3553(a) factors in imposing
Abraczinskas’s sentence. And § 3584(b) provides that, in deciding whether to impose a consecutive
or a concurrent sentence, the court is to weigh the § 3553(a) factors.

                                                   4
say with fair assurance that Abraczinskas’s sentence was not swayed substantially

by the Booker error. Abraczinskas is due to be resentenced under an advisory

guidelines system in accordance with Booker.5

         VACATED and REMANDED.




     5
        We note that the district court correctly determined the guideline sentencing range for
Abraczinskas’s conviction. By adopting codefendant Macia’s arguments, Abraczinskas suggests
that, post-Booker, the district court possesses flexibility to take into account the nature of the
incarcerating facility in determining whether to apply an offense level reduction under U.S.S.G.
§ 2P1.1(b)(2). But the nature of the facility is not a sentencing factor under 18 U.S.C. § 3553(a).
And in any event, in denying Abraczinskas’s request for a § 2P1.1(b) reduction, the district court
judge determined, based on her personal knowledge of the facility that he escaped from, that he was
in secure custody when he escaped. Thus, the district court sufficiently considered the nature of the
facility.

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