United States v. Sutton, Byron , 143 F. App'x 698 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
August 4, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 03-4123 & 04-2358
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
Nos. 02 CR 1131 & 03 CR 496-1
BYRON V. SUTTON,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
Byron Sutton pleaded guilty to crack conspiracy and distribution charges, and
in a prior opinion we rejected his arguments that the district court miscalculated
the drug quantity and imposed an illegal restitution award. United States v.
Sutton, 406 F.3d 472 (7th Cir. 2005). We nonetheless issued a limited remand
because as we now know from United States v. Booker, 125 S.Ct. 738 (2005), the
district court sentenced Sutton in violation of the Sixth Amendment and, despite
being limited to plain-error review given that Sutton failed to timely object to the
sentencing procedures, we were unable to say “whether Sutton’s substantial rights
were affected without consulting the sentencing judge to determine whether she
would have given the same sentence had she known the guidelines were not
Nos. 03-4123 & 04-2358 Page 2
mandatory,” Sutton, 406 F.3d at 475. We retained jurisdiction during the limited
remand.
In response to our limited remand, the district judge informed us that she
cannot represent that she “would have imposed the same sentence” had she known
the sentencing guidelines were not binding. Both parties have filed memoranda
commenting on the district court’s position, and although the government argues
otherwise, we agree with Sutton that, taken in context, the court’s statement is an
expression of intent to impose a lower sentence given the additional discretion
afforded by Booker. Accordingly, we conclude that the concurrent 135-month terms
imposed by the district court constitute plain error. Johnson v. United States, 520
U.S. 461, 466-67 (1997).
Sutton’s sentences are VACATED, and his cases are REMANDED to the
district court for resentencing.