United States v. Cain

REAVLEY, Circuit Judge,

dissenting in part:

I concur in affirming the conviction but see no justification for vacating the sentence. The only problem with the sentence is that the enhancement was imposed when the law made the guidelines mandatory. So we go through the harmless inquiry, wondering what the sentence would have been if the judge had known that the guidelines were not mandatory. It would be more sensible to remand the case to the judge for the decision whether to resentence. Almost always a mere order would be entered, without burdening *678the marshal to retrieve the defendant and the judge to go through resentencing.