                                                             [DO NOT PUBLISH]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

                                           2
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



       1
            To the extent any other appellant arguments are not rendered moot by our disposition,
they are rejected without need for discussion.
                                               3
