United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 4, 2006

Decided May 12, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-1400

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PIOTR KRASINSKI, 

Defendant-Appellant.

Appeal from the United States

District Court for the Northern

District of Illinois, Eastern Division

No. 03 CR 251-3 

 

John W. Darrah,

Judge.

ORDER

Piotr Krasinski was sentenced before the Supreme Court decided United

States v. Booker, 543 U.S. 220 (2005), under the mandatory guidelines regime, but

the court did not enter the sentence until after Booker issued. Because Krasinski

preserved his Booker objection and because he did not have an opportunity to argue

that his sentence was unreasonable in light of the sentencing factors listed in

18 U.S.C. § 3553(a), we vacate and remand for a full resentencing.

Krasinski pleaded guilty to conspiracy to distribute MDMA or Ecstacy in

violation of 21 U.S.C. § 846, and conspiracy to launder money in violation of 18

U.S.C. § 1956(h). Based on a total offense level of 40 and a criminal history

category of I, the presentence report (PSR) recommended a sentencing range from

292 to 365 months. Krasinski’s objections to the PSR included the contention that

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-1400 Page 2 

Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 375 F.3d

508 (7th Cir. 2004), required all facts supporting a sentence to be found by a jury

and proven beyond a reasonable doubt. After rejecting Krasinski’s PSR objections,

the district court sentenced him to 292 months’ imprisonment, the lowest sentence

permissible under the guidelines. Alternatively, “in the event that the sentencing

guidelines are determined to be unconstitutional,” the court sentenced Krasinski to

20 years on both counts to run concurrently. The district court stayed the entry of

the judgment because Krasinski indicated during the sentencing hearing that he

was inclined to withdraw his guilty plea. After Krasinski moved to withdraw his

plea, and the court extended the stay of judgment pending a decision on the

withdrawal motion. The district court denied Krasinski’s motion to withdraw his

plea in January 2005, and the October 2004 judgment—sentencing Krasinski to 292

months’ imprisonment—was entered on February 3, 2005. Although the judgment

was entered after the Supreme Court decided Booker, the district court did not seek

further briefing, hold a hearing, or even acknowledge the Booker decision. 

Krasinski argues that the district court committed error by sentencing him

under the mandatory guidelines regime, and, because he preserved his Booker

objection and the district court indicated that it would have imposed a lower

sentence in the event that the guidelines were found unconstitutional, asks that we

remand his case for a full resentencing. The government concedes Krasinski

preserved his Booker objection in the district court. Accordingly, the case must be

remanded for resentencing unless the government can demonstrate that the district

court’s error did not result in a higher sentence. United States v. Schlifer, 403 F.3d

849, 854 (7th Cir. 2005). The government has not met its burden of proving

harmless error. On the contrary, the record affirmatively establishes harm. The

government concedes this point, noting that the court did not explain why it

imposed the 292-month sentence previously selected under the mandatory

guidelines and not the lesser 20-year alternative sentence.

Despite its concession, the government insists that if resentencing is

necessary, than a limited remand under United States v. Paladino, 401 F.3d 471

(7th Cir. 2005), is proper. But because Krasinski was not given the “opportunity to

draw the judge’s attention to any factor listed in section 3553(a) that might warrant

a sentence different from the guidelines sentence,” which is required post-Booker,

United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005) (quoting

United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005)), a full Schlifer

resentencing is appropriate. To the extent that the government argues that the

district court sufficiently considered the § 3553(a) sentencing factors when it

addressed Krasinski’s departure motions, we have rejected any contention that preBooker departure considerations are an adequate substitute for post-Booker

discretionary decisions considering § 3553(a) factors. United States v. CastroJuarez, 425 F.3d 430, 436 (7th Cir. 2005).
No. 05-1400 Page 3 

For the foregoing reasons, we VACATE the sentence and REMAND the case

for full resentencing.