United States v. Cortes, Fidelmar

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
October 10, 2006
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 02-2252, 02-2353 & 02-3998
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Northern District
of Illinois, Eastern Division
v.
No. 99 CR 469
FIDELMAR CORTES, JOSE
RODRIGUEZ, and JUAN HERNANDEZ, Robert W. Gettleman,
Defendants-Appellants. Judge.
ORDER
Fidelmar Cortes, Juan Hernandez, and Jose Rodriguez were part of a drug conspiracy.
See Unites States v. Medina, 430 F.3d 869 (7th Cir. 2005). Among other things in Medina, we
issued a remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for the
district judge to inform us whether the sentences Cortes, Rodriguez, and Hernandez received
would have been different had he known the guidelines were merely advisory. On August 29,
2006, the judge issued the following statement:
The Court has considered the briefs and submissions by the parties
with respect to the Paladino remands for defendants Fidelmar
Cortez, Jose Rodriguez and Juan Hernandez, and concludes that
the sentences might have been less severe had the court known the
Sentencing Guidelines were advisory rather than mandatory.
Nos. 02-2252, 02-2353 & 02-3998 Page 2
The defendants contend that, based on the judge’s statement, they must be resentenced. The
government has not objected, perhaps recognizing that United States v. Askew, 417 F.3d 648(7th Cir. 2005), settles the matter. As it does. In Askew, at 649, we found that a similar
statement was an “affirmative answer to our question whether plain error occurred . . . .” As in
Askew, the statement of the district judge in this case tells us that he suspects, but does not
promise, that the sentences of these defendants could be “less severe” under advisory guidelines.
Accordingly, the cases of Cortes, Hernandez, and Rodriguez are REMANDED for resentencing.