United States v. Diaz-Gutierrez, Albe

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 19, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 03-2817
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 01 CR 883
ALBERTO RAMON DIAZ-GUTIERREZ,
Defendant-Appellant. Robert W. Gettleman,
Judge.
ORDER
Alberto Ramon Diaz-Gutierrez pleaded guilty to reentering the United States
without permission after he was deported following conviction for an aggravated
felony. See 8 U.S.C. § 1326(a). In sentencing him, Judge Robert W. Gettleman
treated the guidelines as mandatory in accordance with the law as it existed before
United States v. Booker, 543 U.S. 220 (2005). Following Booker, we ordered a
limited remand, pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.
2005), so the judge could inform us whether he would have sentenced Diaz-
Gutierrez differently had he known the sentencing guidelines were merely advisory.
In response to our order, Judge Gettleman stated in part:
The Court is unable at this time to say that it would have
No. 03-2817 Page 2
imposed the same sentence if it had known the
Sentencing Guidelines were merely advisory. The Court
therefore desires to re-sentence the defendant.
We invited the parties to file position statements concerning the appropriate
disposition of the case. Only Diaz-Gutierrez has responded, and he concurs with
the district court that resentencing is appropriate. Accordingly, IT IS ORDERED
that Diaz-Gutierrez’s sentence is VACATED, and the case is REMANDED to the
district court for resentencing.