                                                        [DO NOT PUBLISH]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



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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.

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