United States v. Applewhite, Christin

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
filim’teh étates Qtnurt of gppeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 24, 2005
Decided June 8, 2005
Before
Hon. Joel M. Flaum, Chief Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Terence T. Evans, Circuit Judge
No. 04-1862
United States of America, Appeal from the United States
District Court for the Western
PJaJertiff-Appellee, District of Wisconsin
V. No. 03 CR 137
Christine L. Applewhite, John C. Shabaz, Judge.
Defendant-Appellan t.
O R D E R
Christine Applewhite challenged her sentence of fifty months’ imprisonment
in light of United States V. Booker; 125 S. Ct. 738 (2005), contending that the
district court committed plain error in its application of the then-mandatory
sentencing guidelines.1 While we found that Applewhite had established the first
two requirements of the plain error analysis by showing an error that was plain, we
did not have sufficient information to evaluate the prejudice prong of the analysis -
whether the plain error affected Applewhite’s substantial rights. Based on United
States V. Paladino, 401 F.3d 471, 488-84 (7th Cir. 2005), we issued a limited
1Our initial April 26, 2005 decision in this case resolved all issues on appeal
except Applewhite’s challenge to her sentence based upon Booker.
No. 04-1362 Page 2
remand to the Western District of Wisconsin to determine whether it would impose
the same sentence now that the guidelines are no longer mandatory, thus supplying
this court with the information necessary to complete its plain error evaluation.
We have received a memorandum from the district court regarding the effect
of Booker on Applewhite’s sentence and can now resolve the Booker issue. In its
memorandum, the district court explained that it would again impose the identical
sentence of fifty months on Applewhite post-Booker. Since Applewhite’s sentence
would remain the same, the Booker error did not affect Applewhite’s substantial
rights, and Applewhite cannot show plain error. See id. at 484.
Under Palatho, however, our review does not end upon the completion of the
plain error analysis. See Id. at 484. Rather, we must also analyze Whether the
sentence was reasonable. Id. (“We will affirm the original sentence against a
plain-error challenge provided that the sentence is reasonable, the standard of
appellate review prescribed by Booker, 125 S. Ct. at 765. The proviso is important;
the mere reimposition of the original sentence does not insulate it from appellate
review under the new standard”).
In this case, the sentence was reasonable. The district court correctly
considered several factors mentioned in 18 U.S.C. §3553(a), including the
seriousness of Applewhite’s conduct and the hardship that she caused, as well as
the danger of recidivism and the need to deter such conduct. See Booker, 125 S. Ct.
at 765-66. (“Those factors [listed in § 3553(a)] in turn will guide appellate courts, as
they have in the past, in determining whether a sentence is unreasonable”)
Furthermore, as we have stated previously, “the Guidelines continue to inform
district judges’ decisions,” despite their now-advisory nature. United States V.
George, 403 F.8d 470, 472 (7th Cir. 2005). While the guidelines no longer bind,
they remain an essential tool for the district courts to consult when deciding upon a
sentence. See Booker, 125 S. Ct. at 767. Here, the district court consulted the
guidelines and imposed a sentence in the guideline range. As the district court
looked at proper factors when deciding upon the sentence and reached a sentence
that was Within the range provided by the advisory guidelines, we are satisfied that
the sentence is reasonable.
Based on the information received from the district court, we conclude that
Applewhite’s sentence of imprisonment did not constitute plain error in light of
Booker. Further, Applewhite’s sentence was reasonable. Therefore, we AFFIRM
the district court’s original sentence.