FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 21, 2005

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-16530

Non-Argument Calendar

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D.C. Docket No. 04-00080-CR-2-002-LAC

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

JOSE IGNACIO MACIA,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Florida 

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(November 21, 2005)

Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit

Judges.

PER CURIAM: 
 Macia was serving a 170-month sentence for convictions of financial-based charges when he 1

escaped.

 Macia concedes that a Booker constitutional error did not occur. 

2

2

 Jose Ignacio Macia appeals his 15-month sentence, imposed pursuant to his

guilty plea, for escape, 18 U.S.C. §§ 751(a) & 2. Macia contends that he is due to 1

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 Macia’s sentence and remand for resentencing

consistent with Booker.

Macia 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). The

government concedes that the district court committed a statutory Booker error

when it sentenced Macia under a mandatory guideline system. See United States

v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005) (setting forth that two kinds

of sentencing errors exist based on Booker: constitutional errors and statutory

errors). The government then bears the burden of showing that the statutory error 2

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

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
 The government mistakenly concedes that it cannot show harmless error “beyond a reasonable 3

doubt,” the higher standard applicable to constitutional Booker errors. See United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005). So, the concession does not determine the result. Still the

government failed to discharge its burden of showing that the district court’s statutory Booker error

was harmless.

3

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

3

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. Macia moved

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

brother had died and that Macia was not given enough time to visit his relatives. 
 Macia had escaped with codefendant William Abraczinskas.

4

 Also, the district court ordered the sentence to run consecutively to Macia’s undischarged prior 5

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 Macia’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

The district court denied Macia’s request, stating that “the circumstances under

which both defendants were apprehended do not suggest anything that would

support a downward departure or anything in mitigation of the sentence in this

case.” The district court then sentenced Macia to 15 months’ imprisonment: the 4

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.”5

 The government bears the burden of demonstrating harmless error. See

Mathenia, 409 F.3d at 1292. We are unable to say with fair assurance that Macia’s
5

sentence was not swayed substantially by the Booker error. Macia is due to be

resentenced under an advisory guidelines system in accordance with Booker.

VACATED and REMANDED.