UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 4, 2006
Decided May 12, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1400
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 03 CR 251-3
PIOTR KRASINSKI,
Defendant-Appellant. John W. Darrah,
Judge.
ORDER
Piotr Krasinski was sentenced before the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005), under the mandatory guidelines regime, but
the court did not enter the sentence until after Booker issued. Because Krasinski
preserved his Booker objection and because he did not have an opportunity to argue
that his sentence was unreasonable in light of the sentencing factors listed in
18 U.S.C. § 3553(a), we vacate and remand for a full resentencing.
Krasinski pleaded guilty to conspiracy to distribute MDMA or Ecstacy in
violation of 21 U.S.C. § 846, and conspiracy to launder money in violation of 18
U.S.C. § 1956(h). Based on a total offense level of 40 and a criminal history
category of I, the presentence report (PSR) recommended a sentencing range from
292 to 365 months. Krasinski’s objections to the PSR included the contention that
No. 05-1400 Page 2
Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 375 F.3d
508 (7th Cir. 2004), required all facts supporting a sentence to be found by a jury
and proven beyond a reasonable doubt. After rejecting Krasinski’s PSR objections,
the district court sentenced him to 292 months’ imprisonment, the lowest sentence
permissible under the guidelines. Alternatively, “in the event that the sentencing
guidelines are determined to be unconstitutional,” the court sentenced Krasinski to
20 years on both counts to run concurrently. The district court stayed the entry of
the judgment because Krasinski indicated during the sentencing hearing that he
was inclined to withdraw his guilty plea. After Krasinski moved to withdraw his
plea, and the court extended the stay of judgment pending a decision on the
withdrawal motion. The district court denied Krasinski’s motion to withdraw his
plea in January 2005, and the October 2004 judgment—sentencing Krasinski to 292
months’ imprisonment—was entered on February 3, 2005. Although the judgment
was entered after the Supreme Court decided Booker, the district court did not seek
further briefing, hold a hearing, or even acknowledge the Booker decision.
Krasinski argues that the district court committed error by sentencing him
under the mandatory guidelines regime, and, because he preserved his Booker
objection and the district court indicated that it would have imposed a lower
sentence in the event that the guidelines were found unconstitutional, asks that we
remand his case for a full resentencing. The government concedes Krasinski
preserved his Booker objection in the district court. Accordingly, the case must be
remanded for resentencing unless the government can demonstrate that the district
court’s error did not result in a higher sentence. United States v. Schlifer, 403 F.3d
849, 854 (7th Cir. 2005). The government has not met its burden of proving
harmless error. On the contrary, the record affirmatively establishes harm. The
government concedes this point, noting that the court did not explain why it
imposed the 292-month sentence previously selected under the mandatory
guidelines and not the lesser 20-year alternative sentence.
Despite its concession, the government insists that if resentencing is
necessary, than a limited remand under United States v. Paladino, 401 F.3d 471
(7th Cir. 2005), is proper. But because Krasinski was not given the “opportunity to
draw the judge’s attention to any factor listed in section 3553(a) that might warrant
a sentence different from the guidelines sentence,” which is required post-Booker,
United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005) (quoting
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005)), a full Schlifer
resentencing is appropriate. To the extent that the government argues that the
district court sufficiently considered the § 3553(a) sentencing factors when it
addressed Krasinski’s departure motions, we have rejected any contention that pre-
Booker departure considerations are an adequate substitute for post-Booker
discretionary decisions considering § 3553(a) factors. United States v. Castro-
Juarez, 425 F.3d 430, 436 (7th Cir. 2005).
No. 05-1400 Page 3
For the foregoing reasons, we VACATE the sentence and REMAND the case
for full resentencing.