United States v. Ohlinger, John D. ( 2005 )

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For the Seventh Circuit
Chicago, Illinois 60604
March 10, 2005
Before
Hon. Joel M. Flaum, ChiefJudge
Hon. Daniel A. Manion, Circuit Judge
Hon. Michael S. Kanne, Circuit Judge
No. 03-3880
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin.
U.
No. 02 CR 150
JOHN D. OHLINGER,
Defendant-Appellant. John C. Shabaz,
Judge.
0 R D E R
On August 2, 2004, this Court issued an opinion and order vacating Ohlinger’s
sentence and remanding for resentencing. Plaintiff-appellee filed a petition for
rehearing on September 15, 2004. After consideration of the petition, all of the
judges on the original panel have voted to deny rehearing, and the petition is
therefore DENIED. However, this Court hereby amends its August 2, 2004 opinion
in light of the Supreme Court’s decision in Booker v. United States, 125 S. Ct. 738(2005) and this Court’s decision in United States v. Paladino, et al., Nos. 03—2296, et
al. (7th Cir. Feb. 25, 2005).
The slip opinion issued on August 2, 2004 is amended as followed:
The language on pages 3 and 4 is withdrawn and replaced by the following:
II. Discussion
Ohlinger raises a number of challenges to his sentence. The
district court sentenced Ohlinger prior to the Supreme Court’s
decision in Booker v. United States, 125 S. Ct. 738 (2005) and
treated the sentencing guidelines as mandatory. In accordance
with Booker and our recent decision in United States U. Paladino
et al., No. 03-2296, et a1. (7th Cir. Feb. 25, 2005), we remand
this case to the district court for determination whether that
court would have imposed the same sentence had it understood
that the guidelines were advisory.
III. Conclusion
Pursuant to the procedure announced in Paladino, we direct
a limited remand of Ohlinger’s sentence while retaining
appellate jurisdiction.