In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1110

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES B. GOKEY,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 04 CR 115—John C. Shabaz, Judge.

____________

ARGUED SEPTEMBER 20, 2005—DECIDED FEBRUARY 6, 2006

____________

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. Charles B. Gokey pleaded guilty

to distributing cocaine base. At sentencing, which occurred

after this court’s decision in United States v. Booker, 375 F.3d

508 (7th Cir. 2004), but before the Supreme Court issued its

decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738

(2005), the district court concluded that the sentencing guidelines could not be constitutionally applied to

Gokey. The district court then disregarded the Guidelines
2 No. 05-1110

and instead sentenced Gokey to 235 months’ imprisonment

based on the statutory range. The district court also entered an alternative sentence, ruling that if the Supreme

Court upheld the Guidelines, it would sentence Gokey to

210 months in prison—the highest sentence available under

the calculated Guideline range. Gokey appeals, arguing that

he must be resentenced because, under Booker, the Guidelines are still advisory, and therefore the district court erred

in disregarding the Guidelines entirely. We agree and

therefore remand for resentencing.

I.

Gokey has been in trouble with the law since he was

fourteen, and his criminal history includes the offenses of

burglary, attempted homicide, and the use of a dangerous

weapon. He has also been associated with the Latin Kings

gang since he was fifteen. This case stems from Gokey’s

latest offense—distribution of cocaine base in and around

the Lac Courte Oreilles Reservation in Sawyer County,

Wisconsin. Following a long-term drug investigation of the

distribution of cocaine base at the Lac Courte Oreilles

Reservation, a grand jury indicted Gokey for distribution of

cocaine base on April 8, 2004. On that date, a confidential

informant purchased six individually wrapped pieces of

crack cocaine for $300 from Gokey. 

On October 18, 2004, Gokey pleaded guilty to the April 8,

2004, distribution count. The government prepared and

filed a Pre-Sentence Report (“PSR”) on November 29, 2004.

The PSR detailed grand jury testimony establishing that

Gokey had distributed crack on several other occasions, and

attributed 71.364 grams of crack to Gokey. The PSR also

recommended enhancements for Gokey’s role in the offense
No. 05-1110 3

and his use of a minor in the offense, but recommended a

three-level reduction for acceptance of responsibility.

The sentencing hearing took place on January 7, 2005. At

that time, this court had already decided Booker, but the

Supreme Court had not yet issued its decision in Booker.

Based on this court’s decision in Booker, the government

posited that the district court could not constitutionally

assess upward adjustments based on the total drug quantity

or based on Gokey’s role in the offense or use of a minor

because Gokey had not admitted to those adjustments, nor

had they been proven beyond a reasonable doubt to a jury.

Relying on our decision in Booker, the district court

concluded that the Guidelines were not severable and

therefore concluded that it could not constitutionally apply

the Guidelines to Gokey. Instead, the district court imposed

a sentence consistent with the provisions of 18 U.S.C. § 3553.

Specifically, the district court sentenced Gokey to 235

months in prison, finding that Gokey was a candidate for

recidivism, and that this sentence is “appropriate to achieve

the sentencing objectives of punishment, rehabilitation,

deterrence and protection of the community.”

However, the district court also entered an alternative

sentence of 210 months’ imprisonment under the Guidelines. In setting this alternative sentence, the district court

considered the PSR and Gokey’s objections to certain

enhancements. The district court concluded that Gokey’s

offense conduct involved at least 50 grams of cocaine base,

placing him at offense level 32. The district court denied

Gokey a reduction for acceptance of responsibility, but

rejected the government’s request for an increase in Gokey’s

offense level based on a supervisory role in the offense or

his use of a minor. This resulted in a range of 168-210

months under the Guidelines, with the district court

sentencing Gokey, alternatively, to the maximum.
4 No. 05-1110

Following his sentence, the Supreme Court issued its

decision in Booker, holding that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”

Booker, 125 S.Ct. at 756. In Booker, the Supreme Court also

invalidated the mandatory application of the Guidelines,

holding that district courts are obligated to consider the

Guidelines but are not bound by them. Id. at 767. Gokey

appeals, arguing that his 235-month sentence must be

vacated based on Booker.

II.

On appeal, Gokey argues that his 235-month sentence

must be vacated and this case remanded for resentencing in

light of Booker. Specifically, Gokey argues that the district

court erred by sentencing him as though the Sentencing

Guidelines were defunct, as opposed to advisory. Because

Gokey presented a Booker-type objection in the district court,

our review is plenary. See United States v. Macedo, 406 F.3d

778, 788 (7th Cir. 2005).

 Gokey is correct. As the Supreme Court explained in

Booker, “the guidelines ‘must’ still be ‘consult[ed]’ and

‘take[n] into account when sentencing.’ ” United States v.

Alburay, 415 F.3d 782, 786 (7th Cir. 2005) (quoting Booker,

125 S.Ct. at 767). See also United States v. George, 403 F.3d 470,

472-73 (7th Cir. 2005) (holding that the district court erred

in failing to consider the Guidelines, but that the error was

harmless). More specifically, “[t]he Supreme Court’s

decision in Booker requires the sentencing judge first to

compute the guidelines sentence just as he would have done

before Booker, and then because the Court demoted the
No. 05-1110 5

guidelines from mandatory to advisory status—to decide

whether the guidelines’ sentence is the correct sentence to

give the particular defendant.” United States v. Dean, 414

F.3d 725, 727 (7th Cir. 2005).

The government admits that the district court erred in

treating the Guidelines as defunct, as opposed to advisory,

but argues that any error in sentencing him to 235 months

was harmless. In support of its position, the government

cites George, 403 F.3d 470. In George, the district court

incorrectly proceeded as if the Guidelines were defunct and

sentenced the defendant as if it had the discretion to

sentence the defendant to any term within the statutory

limit of zero to sixty months. Id. at 472. The district court in

George then sentenced the defendant to forty-eight months

in prison. Id. On appeal, this court held that the district

court’s error in treating the Guidelines as defunct (as

opposed to advisory) was harmless. Id. at 473. Specifically,

we reasoned that because, under the Guidelines, George’s

sentencing range was 63 to 78 months, had the district court

“known that the Guidelines continue to have substantial

sway, he might have imposed a sentence closer to 60

months.” Id. However, as we explained, “it is inconceivable

that anticipation of the ongoing need to start from and

respect the Guideline framework would have led to a lower

sentence . . . .” Accordingly, we held that “[a]ny error

therefore was harmless.” Id.

Unlike George, in which the Guideline range dictated a

higher sentence than the one imposed, in this case the

district court’s discretionary sentence exceeded the Guideline range. Therefore, we cannot say that the district court’s

failure to treat the Guidelines as defunct constituted harmless error. 
6 No. 05-1110

In response, the government argues that any error was

also harmless because the record shows that “[w]hile the

district court did not specifically state that it was using the

Guidelines as advisory, it is clear that the district court did

just that.” The government then notes that the district court

rejected a reduction for acceptance of responsibility and

eliminated an enhancement for the role in the offense and

the use of a minor. Contrary to the government’s position,

the sentencing transcript does not support its view that the

district court took into account the Guidelines in sentencing

Gokey to 235 months’ imprisonment. Rather, the sentencing

transcript shows that the district court proceeded under two

distinct assumptions: First, the district court stated that “the

guidelines are not constitutional,” and that it would therefore “impose a sentence consistent with the provisions set

forth in 18 United States Code Section 3553, the appropriate

sentence within the statutory limits as the count of conviction.” The district court then proceeded to discuss the

various factors set forth in § 3553. Significantly, though, in

justifying its 235-month sentence, the district court did not

discuss the Guidelines. Rather, the district court only

considered the Guidelines after noting that “[i]n the event

that the United States sentencing guidelines are ruled

constitutional, the Court now imposes an alternative

sentence that relies upon those guidelines . . . .” It was in

this portion of the sentencing hearing that the district court

considered the various objections to the PSR. 

Moreover, in sentencing Gokey alternatively under the

Guidelines, the district court noted that it normally imposed

identical sentences with or without the Guidelines, but that

it would not do so in this case because the Guideline range

limited the maximum sentence to 210 months. Instead, as

noted above, the district court entered two distinct sentences—235 months without the Guidelines and 210 under

the Guidelines. What the district court did not do, however,
No. 05-1110 7

was to explain whether it would have sentenced Gokey at

235 months if the Guidelines were advisory. 

It may well be that the district court would have sentenced Gokey to 235 months in prison (as opposed to

sentencing him within the 168-210 range) had it known

that the Guidelines were advisory and not defunct. However, “ ’we require a higher degree of certainty’ for a

conclusion that the guideline misapplication was harmless.”

United States v. Graves, 418 F.3d 739, 746 (7th Cir. 2005)

(quoting United States v. Schlifer, 403 F.3d 849, 854 (7th Cir.

2005). Cf. Graves, 418 F.3d at 746 (remanding for

resentencing where we could “find no evidence in the

record proving conclusively that the district court would

have chosen the exact same sentence for [the defendant] had

he known that the guidelines were merely advisory”). In

this case, there is no basis to know how the district court

would have proceeded had it known the Guidelines were

advisory. Therefore, we must vacate Gokey’s sentence and

remand for resentencing under the framework established

in Booker. We also remind the district court that although “a

sentence within a properly calculated guideline range ‘is

entitled to a rebuttable presumption of reasonableness,’

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005),

‘[t]he farther the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification

based on factors in section 3553(a) that the judge must offer

in order to enable the court of appeals to assess the reasonableness of the sentence imposed.’ United States v. Dean,

414 F.3d 725, 729 (7th Cir. 2005).” United States v. CastroJuarez, 425 F.3d 430, 433 (7th Cir. 2005).

III.

The district court erred in sentencing Gokey as if the

Guidelines were defunct, as opposed to advisory. Although
8 No. 05-1110

the district court may still find a 235-month sentence

appropriate, on this record, we cannot conclusively say that

the district court would have assessed that sentence had it

known that the Guidelines remained advisory. Accordingly,

we cannot conclude that the error was harmless. We

therefore VACATE Gokey’s sentence and REMAND for

resentencing in light of Booker.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-6-06