United States v. Applewhite, Christin , 134 F. App'x 94 ( 2005 )


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  • UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    filim’teh étates Qtnurt of gppeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued February 24, 2005
    Decided June 8, 2005
    Before
    Hon. Joel M. Flaum, Chief Judge
    Hon. Daniel A. Manion, Circuit Judge
    Hon. Terence T. Evans, Circuit Judge
    No. 04-1862
    United States of America, Appeal from the United States
    District Court for the Western
    PJaJertiff-Appellee, District of Wisconsin
    V. No. 03 CR 137
    Christine L. Applewhite, John C. Shabaz, Judge.
    Defendant-Appellan t.
    O R D E R
    Christine Applewhite challenged her sentence of fifty months’ imprisonment
    in light of United States V. Booker; 
    125 S. Ct. 738
    (2005), contending that the
    district court committed plain error in its application of the then-mandatory
    sentencing guidelines.1 While we found that Applewhite had established the first
    two requirements of the plain error analysis by showing an error that was plain, we
    did not have sufficient information to evaluate the prejudice prong of the analysis -
    whether the plain error affected Applewhite’s substantial rights. Based on United
    States V. Paladino, 
    401 F.3d 471
    , 488-84 (7th Cir. 2005), we issued a limited
    1Our initial April 26, 2005 decision in this case resolved all issues on appeal
    except Applewhite’s challenge to her sentence based upon Booker.
    No. 04-1362 Page 2
    remand to the Western District of Wisconsin to determine whether it would impose
    the same sentence now that the guidelines are no longer mandatory, thus supplying
    this court with the information necessary to complete its plain error evaluation.
    We have received a memorandum from the district court regarding the effect
    of Booker on Applewhite’s sentence and can now resolve the Booker issue. In its
    memorandum, the district court explained that it would again impose the identical
    sentence of fifty months on Applewhite post-Booker. Since Applewhite’s sentence
    would remain the same, the Booker error did not affect Applewhite’s substantial
    rights, and Applewhite cannot show plain error. See 
    id. at 484.
    Under Palatho, however, our review does not end upon the completion of the
    plain error analysis. See 
    Id. at 484.
    Rather, we must also analyze Whether the
    sentence was reasonable. 
    Id. (“We will
    affirm the original sentence against a
    plain-error challenge provided that the sentence is reasonable, the standard of
    appellate review prescribed by 
    Booker, 125 S. Ct. at 765
    . The proviso is important;
    the mere reimposition of the original sentence does not insulate it from appellate
    review under the new standard”).
    In this case, the sentence was reasonable. The district court correctly
    considered several factors mentioned in 18 U.S.C. §3553(a), including the
    seriousness of Applewhite’s conduct and the hardship that she caused, as well as
    the danger of recidivism and the need to deter such conduct. See 
    Booker, 125 S. Ct. at 765
    -66. (“Those factors [listed in § 3553(a)] in turn will guide appellate courts, as
    they have in the past, in determining whether a sentence is unreasonable”)
    Furthermore, as we have stated previously, “the Guidelines continue to inform
    district judges’ decisions,” despite their now-advisory nature. United States V.
    George, 403 F.8d 470, 472 (7th Cir. 2005). While the guidelines no longer bind,
    they remain an essential tool for the district courts to consult when deciding upon a
    sentence. See 
    Booker, 125 S. Ct. at 767
    . Here, the district court consulted the
    guidelines and imposed a sentence in the guideline range. As the district court
    looked at proper factors when deciding upon the sentence and reached a sentence
    that was Within the range provided by the advisory guidelines, we are satisfied that
    the sentence is reasonable.
    Based on the information received from the district court, we conclude that
    Applewhite’s sentence of imprisonment did not constitute plain error in light of
    Booker. Further, Applewhite’s sentence was reasonable. Therefore, we AFFIRM
    the district court’s original sentence.
    

Document Info

Docket Number: 04-1362

Citation Numbers: 134 F. App'x 94

Judges: Per Curiam

Filed Date: 6/8/2005

Precedential Status: Non-Precedential

Modified Date: 1/12/2023