                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                       NOVEMBER 14, 2005
                                        No. 04-15276                    THOMAS K. KAHN
                                                                             CLERK


                       D. C. Docket No. 04-00053-CR-3-RV-001



UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,

                                            versus

JOSE MANUEL MONSIVAIS-ORTIZ,

                                                                       Defendant-Appellant.



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


                                    (November 14, 2005)

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN*, District
Judge.

_________________________________
*Honorable Adalberto Jordan, United States District Judge for the Southern District of Florida,
sitting by designation.
PER CURIAM:

      Appellant appeals the sentence he received—imprisonment for sixty-four

months—after pleading guilty to illegal entry into the United States after

deportation. At sentencing, appellant, citing Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), objected to being sentenced under

the Sentencing Guidelines on the ground that the Guidelines were

unconstitutional. The district court overruled his objection, concluding (properly

so at the time) that Blakely’s holding did not apply to the federal sentencing

scheme, and imposed a sentence within the Guidelines range. In United States v.

Booker, 543 U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), however, the

Supreme Court made its Blakely holding applicable to sentencing under the

Guidelines; hence, we review appellant’s sentence under Booker’s holdings.

      In treating the Guidelines as mandatory rather than advisory (as Booker

requires), the district court, in sentencing appellant, committed statutory error.

The question we must decide is whether the error is harmless.

      A statutory Booker 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

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though there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th

Cir. 2005).

      After examining the sentencing record in this case, we cannot say that the

error was harmless. The district court gave no indication of the sentence it would

have imposed had it treated the Guidelines as advisory, nor did it indicate the

weight it would have given the sentencing objectives of 18 U.S.C. §

3553(a)(2)(A),(B),(C), and (D) in fashioning appellant’s sentence. We therefore

vacate appellant’s sentence and remand the case for further proceedings.

      SO ORDERED.




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