In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3199
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAUREN A. BAKER,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CR 1138—Ronald A. Guzman, Judge.
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ARGUED FEBRUARY 18, 2005—DECIDED MAY 6, 2005
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Before FLAUM, Chief Judge, and KANNE and EVANS,
Circuit Judges.
FLAUM, Chief Judge. Lauren Baker pleaded guilty to one
count of bank robbery in violation of 18 U.S.C. § 2113(a), and
was sentenced to 51 months of imprisonment. She appeals
only her sentence, arguing that it violates United States v.
Booker, 125 S. Ct. 738 (2005). For the reasons stated herein,
we remand for proceedings consistent with our opinion in
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
2 No. 03-3199
I. Background
On November 22, 2002, Baker and Princeton Davis
entered a Charter One bank in Woodridge, Illinois. Baker
handed a teller a note she had written that stated: “This is
a robbery. Give me all your money or I will kill you. Don’t
lose your life over these other people money. No sudden
move.” Davis gave another teller a similar demand note.
The two tellers complied, giving Baker and Davis a total of
approximately $10,900. Baker and Davis left the bank and
got into a waiting car driven by Sasha Robinson. The police
arrived at the bank just as the getaway car pulled out of the
parking lot and onto the street. Robinson sped away,
ignoring an officer’s command to stop. Robinson led the
police on a high speed chase that came to an abrupt halt
when the getaway car crashed into an unsuspecting citi-
zen’s vehicle. The police arrested Baker, Davis, and Robin-
son at the scene of the crash. Inside the car, officers
discovered clothing later identified as having been worn
during the robbery, Baker’s demand note, $10,900 in U.S.
currency, and bait money that one of the tellers had placed
surreptitiously among the untainted cash.
Baker entered a blind plea of guilty to one count of bank
robbery. At the plea hearing, Baker stipulated to the facts
described above with the sole reservation that she contested
whether she was responsible for the full amount of the
money taken from the bank. She admitted, nevertheless,
that the total amount taken was $10,900.
The probation office issued a presentence report calcu-
lating Baker’s base offense level as 20 pursuant to
United States Sentencing Guideline (“U.S.S.G.”) § 2B3.1(a)
(Nov. 2002). The report recommended the following adjust-
ments: a two-level increase because Baker had taken the
property of a financial institution, § 2B3.1(b)(1); a two-level
increase because she had made a threat of death,
§ 2B3.1(b)(2)(F); a one-level increase because the amount of
No. 03-3199 3
the loss was more than $10,000 but not more than $50,000,
§ 2B3.1(b)(7)(B); a two-level increase for reckless endanger-
ment during flight, § 3C1.2; and a three-level decrease
because Baker timely had accepted responsibility for her
actions, § 3E1.1(a), (b). The report calculated Baker’s total
offense level as 24 and her criminal history category as I,
resulting in a guideline range of 51-63 months.
At sentencing, defense counsel stated that he had no ob-
jection to the presentence report’s calculations, but moved
for a downward departure on grounds not relevant to our
discussion. The district court declined to depart downward,
adopted the presentence report’s calculations, and sentenced
Baker to 51 months of imprisonment. Baker appeals.1
II. Discussion
The sole issue on appeal is whether Baker is entitled to a
remand in light of Booker. Baker argues that the district
court erred by: (i) increasing her sentence based on facts not
found by a jury or admitted by her; and (ii) imposing a
sentence under the belief that the guidelines were manda-
1
Baker’s appellate counsel initially moved to withdraw under
Anders v. California, 386 U.S. 738 (1967), asserting that he could
not discern a nonfrivolous argument for appeal. On June 24, 2004,
we granted the motion and dismissed the appeal. United States v.
Baker, 103 Fed. Appx. 30 (7th Cir. 2004) (unpublished). That same
day, however, the Supreme Court announced its landmark
decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), which
foreshadowed its later opinion in Booker. Counsel petitioned this
court for a rehearing, asserting that in light of Blakely, defendant
had meritorious claims for appeal. We granted the petition,
vacated counsel’s motion to withdraw, and allowed the appeal to
proceed.
4 No. 03-3199
tory.2 Baker did not raise a Sixth Amendment or related
challenge to her sentence before the district court. Accord-
ingly, we review for plain error.
“[B]efore an appellate court can correct an error not raised
at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3)
that ‘affect[s] substantial rights.’ If all three conditions are
met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error ‘seriously
affect[s] the fairness, integrity, or public reputation of judi-
cial proceedings.’ ” Johnson v. United States, 520 U.S. 461,
466-67 (1997) (quoting United States v. Olano, 507 U.S. 725,
732 (1993)) (internal quotations and citations omitted).
The government argues that Baker cannot meet the first
of these requirements because the district court did not err
in enhancing defendant’s sentence. It contends that Baker
admitted the facts supporting each enhancement, and that
a sentence based on a defendant’s admissions does not
violate the Sixth Amendment. See Booker, 125 S. Ct. at 756
(“Any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”). Baker replies that her
admissions at the plea hearing concede only that the govern-
ment could prove the facts described above by a prepon-
derance of the evidence (since that was the standard pre-
Booker). She asserts that Booker requires the government
to establish or obtain a concession that it could establish the
facts supporting each enhancement beyond a reasonable
doubt. Defendant argues in the alternative that, even if she
has conceded that the government could prove each fact
beyond a reasonable doubt, the facts she admitted do not
2
Defendant has abandoned her position that she is liable for only
part of the bank’s loss.
No. 03-3199 5
support the enhancement for reckless endangerment.
Defendant contends that she admitted only to riding in the
getaway car, and that Robinson, not defendant, is responsi-
ble for recklessly endangering others in the course of their
flight.
We need not resolve whether Baker’s sentence, based on
these admissions, complies with the Sixth Amendment. As-
suming no constitutional error, the district court nonethe-
less imposed Baker’s sentence believing that the guidelines
were mandatory. Booker rendered the guidelines advisory
in their entirety, even where the Sixth Amendment would
allow a mandatory regime. 125 S. Ct. at 768. We have held,
moreover, that a district court errs when it imposes a sen-
tence under the belief that the guidelines are mandatory.
See United States v. White, No. 03-2875, slip op. at 13-14 (7th
Cir. May 3, 2005); United States v. Castillo, Nos. 02-3584 &
02-4344, slip op. at 31 (7th Cir. May 3, 2005). Although this
error was by no means obvious at the time of sentencing, “it
is enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson, 520 U.S. at 468. Thus, the first two
prongs of the plain error test are satisfied.
The government argues, however, that Baker can estab-
lish neither the third nor fourth prong of the test. In this
context, a defendant may satisfy the third prong by showing
a reasonable probability that had the district court known
the guidelines were advisory it would have imposed a lesser
sentence. See Paladino, 401 F.3d at 481. How the fourth
prong differs from the third “is not entirely clear,” id., but
we “have predetermined that if the defendant has been
prejudiced by an illegal sentence, then allowing that illegal
sentence to stand would constitute a miscarriage of justice.”
White, slip op. at 14 “(quoting United States v. Macedo, 2005
WL 851501, *8 (7th Cir. Apr. 14, 2005)).” This is true
despite the absence of a Sixth Amendment violation. See id.;
see also Castillo, slip op. at 32 n.8, 33. On the current record,
we cannot determine what the district court would have
6 No. 03-3199
done had it known of its discretion. Accordingly, we order a
limited Paladino remand so that we may resolve the third
and fourth prongs of the plain error test.
III. Conclusion
For the reasons stated above, we retain jurisdiction but
REMAND to the district court for proceedings consistent with
our opinion in Paladino.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-6-05