United States v. Hughes, Eugene

144 F. App'x 562

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 28, 2005
• Docket: 04-3709
• Status: Unpublished

Opinion

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 subsequent decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 re-sentencing in light of Booker.