United States v. Askew, Ulice ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 20, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 03-2574
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Divison
v.
ULICE ASKEW, No. 02 CR 37
Defendant-Appellant.
Elaine E. Bucklo,
Judge.
ORDER
On April 5, 2005, we ordered a limited remand pursuant to United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005), so that we could determine whether the district
court would have imposed the same sentence had the United States Sentencing
Guidelines been merely advisory at the time that Askew was sentenced. See United
States v. Booker, 125 S. Ct. 738 (2005).
On June 29, 2005, the district court responded as follows:
I am unable at this time to say that I would have imposed the same
sentence if I had known the Sentencing Guidelines were merely advisory.
No. 03-2574 Page 2
I therefore desire to resentence the defendant.
On July 6, 2005, the government indicated that it opposes any resentencing of
Askew. (7/06/2005 Gov’t Opp. to Resentencing.) The government contends that Askew
has not met his burden of showing plain error and thus is not entitled to be
resentenced. The government interprets the district court as expressing only a present
desire to resentence Askew, because the judge was “unable at this time to say” whether
she would have imposed the same sentence. (Id. (“The operative time to consider
whether plain error was committed is not the present, that is the district court’s
current feelings about the sentence, but whether when initially sentencing Askew, the
district judge would have been inclined to sentence him to a lesser term had she know
[sic] the guidelines were merely advisory.” (emphasis in original).)
The government takes an unduly narrow view of the district judge’s response and
the purpose of our limited remand. In Paladino, we stated that “[i]f . . . the judge
states on limited remand that he would have imposed a different sentence had he
known the guidelines were merely advisory, we will vacate the original sentence and
remand for resentencing.” 401 F.3d at 484. True, the district judge’s response uses
wording that does not precisely mirror the language quoted. But the judge’s words
respond to and track other language in Paladino indicating that “if the judge would
have imposed the same sentence even if he had thought the guidelines merely advisory
. . . there is no prejudice to the defendant.” Id. at 483. The judge certainly did not say
that she would have imposed the same sentence. In fact, the judge unambiguously
expressed her desire to resentence Askew. See id. at 484.
The important point here is that we interpret the district judge’s response as an
affirmative answer to our question whether plain error occurred in Askew’s case.
Paladino does not require any particular “magic words” to that effect, only that the
district judge indicate whether she would have imposed a different sentence under an
advisory Guideline scheme. In our view, the district judge’s response adequately
expresses that she would have done just that.
Accordingly, we VACATE Askew’s original sentence and REMAND this matter to the
district court for resentencing.