United States v. Acosta, Luis C. , 161 F. App'x 577 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 29, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-1592
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Northern
Plaintiff-Appellee, District of Illinois, Eastern Division.
v.
No. 01 CR 1036
LUIS C. ACOSTA,
Defendant-Appellant. Robert W. Gettleman, Judge.
ORDER
Luis Acosta pled guilty to conspiracy to import heroin into the United States,
using a communication facility in the commission of a felony, and distribution of a
controlled substance. The district court sentenced him to 168 months’ imprisonment,
the low end of the range recommended by the then-mandatory United States
Sentencing Guidelines, and five years of supervised release. Acosta appealed,
contending his sentence was improper under United States v. Booker, 125 S. Ct. 738(2005). We reviewed his contention using the plain error standard of review. In
accordance with the procedure we announced in United States v. Paladino, 401 F.3d
471 (7th Cir. 2005), we ordered a limited remand on July 29, 2005 to ask the district
court whether it would have imposed the same sentence knowing the Guidelines were
advisory.
The district court judge responded, “If I had known the Sentencing Guidelines
were advisory rather than mandatory, I cannot conclude that I would have imposed the
same sentence I imposed in this case.” As the government acknowledges, the district
No. 04-1592 Page 2
court’s response to our limited remand demonstrates that plain error has been shown.
As a result, we VACATE Acosta’s sentence and REMAND to the district court for
resentencing.