NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 31, 2012
Decided October 3, 2012
Before
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge*
No. 11-1752
UNITED STATES OF AMERICA, On Remand from the Supreme Court of
Plaintiff-Appellee, the United States
v. Appeal from the United States District
Court for the Northern District of
PEDRO HERNANDEZ, Illinois, Eastern Division
Defendant-Appellant.
No. 08 CR 832
Amy J. St. Eve, Judge
ORDER
*
Circuit Judge Terence T. Evans was a member of the original panel in this case. He
died on August 10, 2011, and thus did not participate in the decision of this case on remand
from the Supreme Court. The case is now being resolved by a quorum of the panel under
28 U.S.C. § 46(d).
No. 11-1752 Page 2
On July 31, 2012, the Supreme Court of the United States granted Pedro Hernandez’s
petition for a writ of certiorari, vacated this court’s judgment in the case, and remanded for
further consideration in light of Dorsey v. United States, 567 U.S. –,
132 S. Ct. 2321 (2012). In
accordance with Circuit Rule 54, both parties have filed statements of position setting forth
the action that they believe should be taken. The Government concedes that Hernandez
was sentenced after August 3, 2010, for an offense involving cocaine base, and that under
Dorsey he should have been sentenced within the statutory penalties set by the Fair
Sentencing Act of 2010. Following the law that then prevailed in this circuit, the district
court had not done so. The Government now concedes that this error was not harmless,
because the court imposed a sentence at the old mandatory minimum and did not indicate
either way whether it would have necessarily given a lower sentence. Hernandez also
argues that he is entitled to resentencing in a manner consistent with the Fair Sentencing
Act and Dorsey.
We agree with the assessments of both parties. We thus VACATE Hernandez’s sentence
and REMAND this case to the district court for the Northern District of Illinois for re-
sentencing under the Fair Sentencing Act of 2010, as required by Dorsey.
SO ORDERED.
