United States v. Longoria, Alfredo

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

September 22, 2005

Before

Hon. DANIEL A. MANION, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

Nos. 03-1454 & 03-2615

UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v.
Nos. 01 CR 1115
ALFREDO LONGORIA and
LEONEL DURAN, Milton I. Shadur,
Defendants-Appellants. Judge.

ORDER

This court ordered a limited remand so the district court could state on the
record whether the defendants’ sentences remain appropriate now that United
States v. Booker, 125 S. Ct. 738 (2005), has limited the Guidelines to advisory
status. See United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).

The district judge has now replied that he is “uncertain” whether he would
have imposed the same sentences based on the existing record; the judge has
requested an opportunity to resentence the defendants based on a new sentencing
hearing. The government opposes resentencing, arguing that the district court did
not unequivocally state in response to the Paladino remand that he would have
imposed lesser sentences had he known the Guidelines were advisory. The
government asserts that plain error under Paladino is not established unless the
district judge advises that he would have been inclined to impose lesser sentences
at the time of initial sentencing had he known the Guidelines were advisory.
Nos. 03-1454 & 03-2615 Page 2

We have recently rejected this argument as an “unduly narrow view” of the
purpose of the Paladino limited remand procedure. United States v. Askew,
417 F.3d 648 (7th Cir. 2005). In Askew, the district judge responded to this court’s
Paladino remand by stating that she was “unable at this time to say” whether she
would have imposed the same sentence under an advisory Guidelines scheme and
expressed her “desire to resentence the defendant.” Id. at 649. We broadly
interpreted this response as “an affirmative answer to our question whether plain
error occurred” and remanded for resentencing. Id.

Askew applies here. Accordingly, we VACATE the defendants’ sentences and
REMAND this matter to the district court for resentencing.