United States v. Krueger, Paul A. , 150 F. App'x 553 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
September 27, 2005
Before
Honorable WILLIAM J. BAUER, Circuit Judge
Honorable ILANA DIAMOND ROVNER, Circuit Judge
Honorable ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2539
UNITED STATES OF AMERICA, Appeal from the United States
District Court for the Eastern
Plaintiff-Appellee, District of Wisconsin.
v. No. 03 CR 182
PAUL A. KRUEGER, William C. Griesbach, Judge.
Defendant-Appellant.
ORDER
After defendant-appellant Paul A. Krueger pleaded guilty to possessing
marijuana with the intent to distribute, see 21 U.S.C. §§ 841(a)(1), the district court
ordered him to serve a prison term of 57 months, a sentence at the low end of the
range specified by the United States Sentencing Guidelines. R. 42. In our opinion
of July 28, 2005, we rejected Krueger’s contention that his sentence was improper
because the district court had relied on information obtained in violation of his
Sixth Amendment right to counsel in determining the relevant drug quantity for
sentencing purposes. United States v. Krueger, 415 F.3d 766 (7th Cir. 2005).
However, because Krueger was sentenced prior to the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005), the district court had made its
sentencing decision believing (understandably) that the Sentencing Guidelines were
No. 04-2539 Page 2
mandatory. So that we might determine whether that error prejudiced Krueger so
as to establish plain error, see Fed. R. Crim. P. 52(b), we ordered a limited remand
to allow the district court to determine whether, knowing that the Guidelines are
advisory rather than mandatory, the court would have been inclined to impose a
sentence below the Guidelines range. See United States v. Paladino, 401 F.3d 471,
483-84 (7th Cir. 2005), petition for cert. filed (U.S. May 26, 2005) (No. 04-10402).
On remand, the district court solicited written statements of position from
the parties. Krueger submitted a 16-page memorandum contending that, in view of
the various sentencing factors set forth in 18 U.S.C. § 3553(a), a sentence below the
Guidelines range would be appropriate, and further that the court likely would have
imposed a lesser sentence had it been aware of the broader discretion it enjoys after
Booker to choose an appropriate sentence. R. 54. The government did not submit a
statement. After reviewing the pre-sentence report, the sentencing transcript, and
Krueger’s memorandum, the district judge issued a written statement advising us
that “had I known that the sentencing guidelines were advisory, I would likely have
imposed a lesser sentence.” R. 57 at 2.
On receipt of the district court’s statement, we invited the parties to file
cross-statements as to the course of action this court should now take in view of the
district court’s stated inclination. Krueger has filed a statement contending that we
should vacate his sentence and remand for full re-sentencing. The government has
filed a statement conceding that this is the appropriate course to follow pursuant to
Paladino.
Having reviewed the district court’s statement on remand and Kruger’s
position statement, we conclude that it is appropriate to vacate Krueger’s sentence
and remand for full re-sentencing. The district judge’s determination that he likely
would have sentenced Krueger to a lesser prison term had he known that the
Sentencing Guidelines are advisory establishes that the error in treating the
Guidelines as binding affected Krueger’s substantial rights and seriously affected
the fairness, integrity or public reputation of judicial proceedings. See Johnson v.
United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997); Paladino, 401
F.3d at 481-82, 484.
For these reasons, we VACATE Krueger’s sentence and REMAND for re-
sentencing in conformity with Booker.