                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                       FILED
                        ________________________
                                                                U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                               No. 05-10029
                                                                    JUNE 23, 2005
                           Non-Argument Calendar
                                                                  THOMAS K. KAHN
                         ________________________                     CLERK

                     D. C. Docket No. 04-20427-CR-CMA

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CARLOS F. BARRETO,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                               (June 23, 2005)


Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Carlos F. Barreto appeals his 27-month sentence for wire fraud and argues
that we should remand his case for resentencing because he was sentenced by the

district court under a mandatory Sentencing Guidelines regime. Barreto preserved

this argument, under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004),

and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), in the district

court. The government has conceded on appeal that it cannot prove that the error

of sentencing Barreto under a mandatory regime was harmless, and we, therefore,

vacate Barreto’s sentence and remand for resentencing.

      Barreto was indicted in the Southern District of Florida for one count of wire

fraud. Barreto pleaded guilty to that charge, and the district court sentenced him to

27 months in prison, followed by three years of supervised release. That sentence

was at the low end of the suggested 27-33 month Guideline range. Barreto was

also ordered to repay the fraudulently obtained money and prejudgment interest,

for a total of $1,929,210 in restitution. Barreto does not challenge on appeal the

restitution imposed by the district court.

      Barreto, under Blakely, objected to the presentence investigation report. The

district court overruled Barreto’s objections and sentenced him under the

mandatory Sentencing Guidelines that were used by district courts before Booker.

Barreto contends that the district court erred, under Booker, when it did not treat

the Sentencing Guidelines as advisory during his sentencing.



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      “Where there is a timely objection, we review the defendant’s Booker claim

in order to determine whether the error was harmless.” United States v. Mathenia,

No. 04-15250, ___ F.3d ___, 2005 WL 1201455, at *2 (11th Cir. May 23, 2005).

As this Court discussed in Mathenia, “[t]here are two harmless error standards.

One of them applies to Booker constitutional errors, the other to Booker statutory

errors.” Id. The second standard, for statutory error, applies here, and that

standard requires us to determine whether the error either did not affect the

sentence or only had a slight effect. Id. (quoting United States v. Hornaday, 392

F.3d 1306, 1315-16 (11th Cir. 2004)). The standard of review for statutory error

“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.” Id.

      The government concedes that it cannot sustain its burden of proving that

the effect of the statutory error on Barreto’s sentence was harmless. We must,

therefore, remand for resentencing.

      Barreto’s sentence is VACATED, and we REMAND this case to the district

court for resentencing.




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