United States v. Paladino, Robert D. , 143 F. App'x 716 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
September 23, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 03-2296 & 03-2383–86
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 01 CR 852
ROBERT D. PALADINO, et al.,
Defendants-Appellants. William T. Hart,
Judge.
ORDER
We ordered a limited remand to ask whether the district judge, had he known
the sentencing guidelines were advisory, would have imposed the same sentence on
Robert Paladino, Daniel Benson, Monica Iles, Randall Law, and Frank Peitz. See
United States v. Booker, 125 S. Ct. 738 (2005); United States v. Paladino, 401 F.3d
471, 484 (7th Cir. 2005). The judge answered that he would have imposed the
“same total sentences of incarceration.” He went on to explain, however, that at
sentencing he erroneously assumed a 30-year statutory maximum for the wire fraud
counts on which each defendant was convicted, see 18 U.S.C. § 1343. Since the
crimes did not affect a financial institution and took place before the statute was
amended in 2002, the correct maximum in each case was five years. See id.; United
States v. Baldwin, 414 F.3d 791, 794 (7th Cir. 2005). Yet the judge imposed on each
Nos. 03-2296, 03-2383–86 Page 2
defendant eight concurrent terms exceeding five years for these counts. As the
court now realizes, it should have structured the defendants’ overall punishment by
imposing five-year terms and making the sentences partially consecutive to achieve
the same bottom line. See U.S.S.G. § 5G1.2(d); Baldwin, 414 F.3d at 794, 797;
United States v. Noble, 299 F.3d 907, 909 (7th Cir. 2002). Furthermore, incorrectly
applying the 30-year maximum also resulted in excessively long terms of supervised
release for each defendant but Iles. Iles got three years’ supervised release, the
maximum; the others got five, two years longer than the maximum. See 18 U.S.C.
§§ 3559(a)(4), 3583(b)(2); U.S.S.G. § 5D1.2(a)(2). The judge explains in his response
to our limited remand that he would fix these mistakes if we remanded for him to do
so.
We invited the parties to respond, but only the government, Paladino, and
Iles did. For its part the government concedes that the sentences are illegal, yet it
asks that we affirm all but Peitz’s because he alone raised the issue of the statutory
maximum on appeal. Waiver, however, is circumscribed in the case of a sentence
above the statutory maximum. United States v. Bownes, 405 F.3d 634, 637 (7th
Cir. 2005) (citing cases). And the error in such a case is plain. United States v.
Gibson, 356 F.3d 761, 766–67 (7th Cir. 2004). In any event, we will not affirm
sentences unless they are reasonable, Paladino, 401 F.3d at 484, and cannot
conclude that these illegal sentences meet that standard. What’s more, there is no
economy in affirming now only to have these sentences immediately challenged
under 28 U.S.C. § 2255.
Therefore, we VACATE each defendant’s sentence in appeal numbers
03-2296, 03-2383, 03-2384, 03-2385, and 03-2386 and REMAND so that each
sentencing “package” can be properly structured and the terms of supervised
release corrected. See Noble, 299 F.3d at 910. Nonetheless, it’s worth noting that
once the mistakes are fixed on remand, the overall sentencing package in each case
would be presumptively reasonable since each was properly calculated under the
guidelines. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The
defendants have offered nothing to rebut that presumption.