United States v. Hughes, Eugene

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2005*
Decided September 28, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-3709
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 04-CR-76-C-01
EUGENE HUGHES,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Eugene Hughes pleaded guilty to distributing cocaine base in violation of 21
U.S.C. § 841(a)(1). Hughes objected to the presentence investigation report based
on United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and at his sentencing
hearing he requested that the court impose a discretionary sentence of 132 months
rather than adhering to the sentencing guidelines. The district court, believing
itself bound by guidelines, sentenced Hughes to 188 months’ imprisonment—the
lowest available sentence under the guidelines. In light of the Supreme Court’s
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-3709 Page 2
subsequent decision in United States v. Booker, 125 S. Ct. 738 (2005), invalidating
the mandatory application of the guidelines, Hughes’s sentence is erroneous. See
United States v. White, 406 F.3d 827, 835 (7th Cir. 2005); United States v. Castillo,
406 F.3d 806, 823 (7th Cir. 2005).
Having preserved the error in the district court, Hughes puzzlingly requests
that we order a limited remand under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005). But that case is inapposite here. As the government points out, Hughes
is entitled to a full resentencing unless the government can demonstrate that the
error did not result in a higher sentence. United States v. Schlifer, 403 F.3d 849,
854 (7th Cir. 2005); see United States v. Macedo, 406 F.3d 778, 788 (7th Cir. 2005)
(explaining that our review is plenary where a Booker-type objection was made in
the district court). The government concedes that it cannot meet its burden in this
case, particularly because the district court stated that the 188-month sentence was
“unfortunate” and “out of line.” We agree that the error was not harmless, and we
therefore VACATE the sentence and REMAND the case for resentencing in light of
Booker.