United States v. Gonzales, Jose M. , 131 F. App'x 493 ( 2005 )


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  •                              UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued March 31, 2005
    Decided April 25, 2005
    Before
    Hon. JOEL M. FLAUM, Chief Judge
    Hon. RICHARD A. POSNER, Circuit Judge
    Hon. TERENCE T. EVANS, Circuit Judge
    No. 04-1406
    UNITED STATES OF AMERICA,                         Appeal from the United States
    Plaintiff-Appellee,                 District Court for the
    Northern District of Illinois,
    v.                                          Eastern Division.
    JOSE MARIA GONZALES,                              No. 03 CR 216
    Defendant-Appellant.
    Joan B. Gottschall, Judge.
    ORDER
    After a jury convicted Jose Maria Gonzales of transporting nearly 1,500
    kilograms of marijuana hidden in a load of cabbage, of all places, the district court
    sentenced him to 360 months in prison. The sentence was imposed by the judge,
    reluctantly as we shall see, under the then-existing view that federal sentencing
    guidelines were mandatory. Gonzales appealed his sentence on a number of grounds
    related to the district court’s application of the guidelines. Since his appeal was filed,
    the Supreme Court decided United States v. Booker, 
    125 S. Ct. 738
     (2005), and we
    followed with United States v. Paladino, 
    401 F.3d 471
     (7th Cir. 2005).
    In Paladino, we concluded that, in order to determine whether a defendant was
    prejudiced by a sentence imposed under the mandatory regime (Gonzales failed to
    raise the argument in the district court and must show plain error in order to prevail),
    No. 04-1406                                                                      Page 2
    we generally will order a limited remand to determine whether the district court would
    have imposed the same sentence had it known that the guidelines were advisory. See
    
    id.
     In those cases, if the district court then tells us that it would have given the
    defendant a different sentence, we will vacate the sentence and remand for
    resentencing. 
    Id.
    In this case, a limited remand serves no purpose. The point of the limited
    remand is to determine what the district court would have done if it had known that
    the guidelines were advisory. And, here, the district court clearly suggested that it
    would have imposed a lower sentence. The judge told Gonzales on a number of
    occasions that she did not think she could legally depart from the sentencing
    guidelines, eventually conceding: “This is a perfect example of what Justice Kennedy
    is complaining about, about sentencing that is so severe that it raises -- that it’s not
    justice and that it raises real questions of morality. I’m perfectly happy with that. But
    I don’t feel, without quitting my job, that I can evade the requirements of the law on
    this sentence.” Given this statement of angst by the judge, even the government
    agrees that there is no reason to send the case back on a limited remand. Thus, we
    skip the extraneous step and VACATE Gonzales’s sentence and REMAND the case for
    resentencing.
    

Document Info

Docket Number: 04-1406

Citation Numbers: 131 F. App'x 493

Judges: Per Curiam

Filed Date: 4/25/2005

Precedential Status: Non-Precedential

Modified Date: 1/12/2023