Œ Pursuant to Seventh Circuit Internal Operating Procedure

6(b), these successive appeals were submitted to the panel of

judges that disposed of the defendants’ direct appeals of their

convictions and sentences. See United States v. Mansoori, 304

F.3d 635 (7th Cir. 2002). Judge Wood, who was a member of the

original panel, has recused herself from consideration of the

instant appeals, and Judge Manion was selected at random to

replace her. None of the parties has included in its brief a

statement indicating that oral argument is necessary, see Fed. R.

App. P. 34(a)(1) and Circuit Rule 34(f), and upon review of the

briefs and the record and consideration of the standards set forth

in Fed. R. App. 34(a)(2), the panel has determined that oral

argument is unnecessary to the resolution of these appeals. The

appeals have therefore been submitted on the briefs and the

record.

In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-1950, 04-1974, 04-2653 & 05-3440

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MOHAMMAD MANSOORI, MARK COX,

KENNETH CHOICE, and TERRY YOUNG,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 97 CR 63—George W. Lindberg, Judge.

____________

SUBMITTED JULY 10, 2006Œ—DECIDED MARCH 13, 2007

____________
2 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. In 2002, we affirmed the

convictions of defendants-appellants Mohammad Mansoori, Mark Cox, Kenneth Choice, and Terry Young

(collectively, the “defendants”) in this narcotics conspiracy case, but we vacated their sentences and remanded

the case to the district court in order to correct certain

sentencing errors we had identified. United States v.

Mansoori, 304 F.3d 635 (7th Cir. 2002) (“Mansoori I”). On

remand, the district court corrected those errors but left

in place the life sentences that all of the defendants had

originally received on their conspiracy convictions.

The defendants’ current appeals are aimed at their life

sentences. Mansoori, Cox, and Choice contend that because

we vacated their sentences in Mansoori I, they were (and

are) entitled to de novo re-sentencing rather than resentencing confined to the particular errors we found in

the prior appeal. De novo re-sentencing likely would

benefit the defendants, because if the district court were

to start the sentencing process over from scratch, it

would have to comply with the Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000). In Mansoori I, we determined that the imposition of life sentences on the defendants’ conspiracy convictions amounted to Apprendi error, because the jury had

not made a finding as to the amount of narcotics involved

in the conspiracy that would authorize a prison term of

life. 304 F.3d at 657. However, believing that none of the

defendants had made an Apprendi-like argument below,

we reviewed the Apprendi challenge for plain error only.

Id. We concluded that the Apprendi error did not warrant

relief under that standard, reasoning that a properly

instructed jury surely would have found the drug quantity

necessary to support the life sentences. Id. at 658. Consequently, we did not find the defendants entitled to resentencing on their convictions for narcotics conspiracy. If,

however, the defendants were now to be re-sentenced de
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 3

novo, as if the original sentencing had never occurred, the

district court would be bound by Apprendi, and in the

absence of a jury finding as to the relevant drug quantity,

the lengthiest prison term that the court could impose on

the conspiracy charge would be twenty years. See Mansoori I, 304 F.3d at 659 (discussing the erroneous life

sentences imposed as to Young and Choice on the distribution charge set forth in Count Two); 21 U.S.C.

§ 841(b)(1)(C).

Alternatively, Mansoori, Cox, and Choice contend that

their sentences are inconsistent with the Supreme Court’s

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

S. Ct. 738 (2005), because the district court treated the

Sentencing Guidelines as binding when it re-sentenced

them. They ask us to grant them limited remands under

United States v. Paladino, 401 F.3d 471 (7th Cir.), cert.

denied, 126 S. Ct. 106 (2005), and cert. denied, 126 S. Ct.

1343 (2006), so that the district court may consider

whether it would have imposed the same sentences on

them knowing that the Guidelines are no longer binding

but merely advisory.

Like his co-defendants, Young attacks his life sentence

on the basis of Apprendi, but his reasoning is different.

Young contends that because he, in contrast to the other

defendants, preserved an Apprendi argument at his

original sentencing, we erred in subjecting his Apprendi

challenge to limited, plain error review. Young urges us

to correct the mistake, vacate his life sentence on the

conspiracy charge, and remand for de novo re-sentencing

subject to a maximum prison term of twenty years on

that charge.

For the reasons that follow, we conclude that Mansoori,

Cox, and Choice are not entitled to de novo re-sentencing.

They are, however, entitled to Paladino remands. We

further conclude that Young is not entitled to de novo resentencing either, notwithstanding his contention that he
4 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

preserved his Apprendi challenge. Assuming that he

timely raised an Apprendi argument in the district court,

the error was harmless for the same essential reason we

found it not to constitute plain error in Mansoori I. A

Paladino remand is unnecessary in Young’s case, as the

district court stated on the record that it would not

sentence Young any differently treating the Sentencing

Guidelines as advisory in accord with Booker.

I.

A jury convicted all four defendants of conspiring to

distribute narcotics, in violation of 21 U.S.C. § 846, and

the district court ordered them to serve life terms for that

offense. In addition, Young and Choice were convicted of

possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and were ordered to serve

concurrent life terms on that charge; Young was convicted of one count of money laundering, in violation of 18

U.S.C. § 1956, and was ordered to serve a concurrent term

of twenty years on that charge; and Mansoori was convicted of 11 counts of engaging in monetary transactions

involving property derived from criminal activity, in

violation of 18 U.S.C. § 1957, as to which the district court

imposed consecutive terms of ten years, to be served

concurrently with his life term on the conspiracy charge.

On appeal, we affirmed the defendants’ convictions but

concluded that re-sentencing was necessary in order to

correct certain errors. Specifically, we concluded that

Young and Choice were subject to a maximum prison term

of 20 years rather than life on the distribution charge,

304 F.3d at 658-59; that Young and Mansoori were subject

to special assessments of $50 rather than $100 on their

convictions for monetary offenses, id. at 659; that as to

Young, the district court had the authority to consider a

downward departure based on his purportedly diminished

mental capacity, id. at 672-676; and that the district court
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 5

1 We reached a different conclusion with respect to the concurrent life terms imposed as to Young and Choice as to Count

(continued...)

erred in ordering the defendants to pay community

restitution, id. at 677.

As we have mentioned, among the arguments on which

we did not grant relief in Mansoori I was the defendants’

joint argument that their life sentences on the conspiracy

charge were imposed in violation of their Sixth Amendment right to a jury trial as explained in Apprendi.

Believing that none of the defendants had raised this

issue in the district court, we reviewed the Apprendi

argument for plain error only. Id. at 657. We agreed that

the imposition of a life term constituted an obvious error

in retrospect. The statute under which the defendants

were charged with conspiracy provides for a prison sentence of up to life so long as the offense involved five or

more kilograms of cocaine or one or more kilograms of

heroin. 21 U.S.C. § 841(b)(1)(A)(i) and (ii). However, in the

absence of a proven drug amount, the default maximum

prison term is twenty years. § 841(b)(1)(C). In this case,

the conspiracy charge set forth in Count One of the

indictment did not allege, and the jury was not asked to

find, that the amount of drugs involved in the conspiracy

met or exceeded the statutory threshold for a life term.

The jury’s guilty verdict therefore did not support a

sentence in excess of twenty years. Id. at 657. Nonetheless,

we concluded that the error did not implicate the

integrity and fairness of the judicial process so as to

warrant relief under the plain error standard. Id. at 657-

58. Having reviewed the trial record, we found that the

evidence indicating the conspiracy involved the statutorily

required amount of narcotics was so overwhelming as to

leave no doubt that a properly instructed jury would have

found that threshold satisfied. Id. at 658.1
6 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

(...continued)

Two of the indictment, which charged them with possessing with

the intent to distribute one kilogram of cocaine in violation of

21 U.S.C. § 841(a)(1). Given that Young and Choice were alleged

to have possessed no more than one kilogram of cocaine in this

charge, the maximum possible prison term that could be imposed on them was forty years rather than life. See 21 U.S.C.

§ 841(b)(1)(B)(ii). So the life sentences on Count Two were

erroneous irrespective of the fact that the jury, as with the

Count One conspiracy charge, had not been asked to make a

finding as to the amount of narcotics that Young and Choice had

distributed. 304 F.3d at 659. Consequently, re-sentencing on

Count Two was required even if we had no doubt that the jury

would have found that Young and Choice had distributed the

one-kilogram quantity of cocaine alleged in the indictment. Id.

And in re-sentencing these two defendants on Count Two, the

district court would of course have to comply with Apprendi. Id.

Consequently, in the absence of a jury finding as to the relevant

drug quantity, the district court on remand could (and did)

impose a sentence of no greater than twenty years. Id.

Young filed a petition for rehearing. With respect to the

Apprendi issue, Young noted that in contrast to the other

defendants, his counsel had, in fact made a Sixth Amendment argument at sentencing that anticipated the

Apprendi decision. Consequently, Young maintained, his

Apprendi challenge was not subject to limited, plain error

review, and because the court had already found that

an Apprendi error had occurred, he was entitled to relief

in the form of de novo re-sentencing. In its answer to

Young’s petition, submitted at our request, the government did not contest Young’s assertion that he had timely

raised a Sixth Amendment argument in the district court

and was therefore entitled to relief under Apprendi.

Rather, the government contended that the point was

moot because this court had vacated each of the defendant’s sentences and remanded for re-sentencing in light

of the other errors the court had identified. Consequently,
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 7

the government reasoned, Young as well as the other

defendants were to be re-sentenced on the conspiracy

charge and any Apprendi error would be taken care of in

re-sentencing.

We denied Young’s petition for rehearing without

comment. The Supreme Court subsequently denied the

petition for a writ of certiorari filed by Mansoori, Cox, and

Young. Cox v. United States, 538 U.S. 967, 123 S. Ct. 1761

(2003).

On remand, the government performed an about-face

and contended that because this court had not vacated

Young’s sentence as a whole and had not directed that

Young be re-sentenced on the conspiracy conviction, Young

was not entitled to de novo re-resentencing. See R. 808,

810, 839. After entertaining the parties’ memoranda as

to the scope of the remand, the district court concluded

that the only issues to be addressed with respect to

Young’s sentence were Young’s request for a downward

departure based on his purportedly diminished mental

capacity, correction of the sentence on Count Two to

conform with the statutory maximum of twenty years, the

payment of community restitution, and the special assessment imposed as to the Count Fourteen money laundering charge. R. 851, R. 884 at 4-5, R. 1012-2 at 27-28. The

court rejected the possibility of re-visiting the life sentence

imposed on Young on the Count One conspiracy conviction in light of the Apprendi error we had acknowledged

on appeal. R. 1012-2 at 30; see also R. 851, R. 884 at 4-5.

With respect to Young’s co-defendants, the district court

similarly concluded that the discrete errors that had

prompted this court to vacate their sentences (the erroneous life term on Count Two for Choice, the excessive

special assessments on Mansoori’s monetary offenses, and

the order that all defendants pay community restitution)

did not entitle them to completely new sentences that
8 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

would conform with the Apprendi decision. R. 851, R. 884

at 4-5. As to each defendant, the court re-imposed the life

sentence on Count One that it had originally ordered each

defendant to serve. R. 891, R. 892, R. 939, R. 1000.

The remand consequently had little appreciable impact

on any of the appellants’ sentences. The court denied

Young’s request for a diminished-capacity departure, R.

1012-2 at 28, and as to Count Two re-sentenced both

Young and Choice to twenty-year terms, to be served

concurrently with their life sentences on Count One. The

court rescinded the original requirement that all defendants pay community restitution. And the court corrected the special assessments that Young and Mansoori

owed on their convictions for monetary offenses.

Thusly the defendants have arrived back in this court,

asserting as they did below that they are entitled to de

novo re-sentencing subject to maximum prison terms of

twenty years on their Count One conspiracy convictions

in conformity with Apprendi.

II.

We begin our review with Choice, Cox, and Mansoori.

None of these three defendants argued prior to their

original sentencings that the Sixth Amendment precluded

the district court from making the factual findings necessary to raise the statutory maximum prison term on their

Count One convictions for narcotics conspiracy from

twenty years to life. It was for that reason in Mansoori I

that we reviewed the Apprendi challenge to their life

sentences on Count One for plain error; and, as we have

discussed, we concluded that there was no plain error

because a properly instructed jury surely would have

found the threshold amount of cocaine and/or heroin

necessary to permit a life term. 304 F.3d at 657-58.
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 9

Despite our affirmance of their life terms, Choice, Cox, and

Mansoori contend that the district court should have resentenced them de novo on remand and, in compliance

with Apprendi, imposed terms of no greater than twenty

years on Count One. Specifically, they argue that the

district court misconstrued our remand order as one

confined to correcting the discrete sentencing errors we

identified in the prior appeal. As a fallback, these defendants contend that because their corrected sentences on

remand were imposed prior to the Supreme Court’s

decision in Booker and the district court consequently

treated the Sentencing Guidelines as binding, they are

entitled to remands pursuant to our decision in Paladino.

An observation is in order at the outset. As we have

noted, the government, in opposing the petition for rehearing that Young filed following this court’s decision in

Mansoori I, represented that in view of this court’s decision to vacate the defendants’ sentences, the defendants

would of course be re-sentenced de novo and in compliance

with Apprendi on remand. Although the government

quickly abandoned (and contradicted) that view on remand, the defendants have suggested that the government’s original concession that the defendants were

entitled to de novo re-sentencing amounts to a judicial

admission that entitles them to that relief.

However, the government’s representations on this

subject are beside the point as far as we are concerned.

The scope of the Mansoori I remand is, in the first instance, a question of what this court intended when it

vacated the defendants’ sentences and remanded for resentencing, and, in the second instance, a question of the

district court’s sentencing discretion. See United States v.

White, 406 F.3d 827, 831-33 (7th Cir. 2005), cert. denied,

127 S. Ct. 552 (2006). The government’s original understanding of our prior decision, right or wrong, cannot bind

us as we examine the scope of the relief we ordered and
10 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

then consider whether the district court complied with our

mandate. See Sibron v. New York, 392 U.S. 40, 58, 88

S. Ct. 1889, 1900 (1968); Ren v. Gonzales, 440 F.3d 446,

448 (7th Cir. 2006). This is true both as to Young and the

other defendants.

That said, we conclude that the district court was not

obliged to re-sentence Choice, Cox, and Mansoori de novo

on remand from the prior appeal. It is true that we vacated

their sentences generally without imposing any express

limitations on the scope of the re-sentencing, and vacation

of a sentence nominally results in a clean slate. See White,

406 F.3d at 832 (collecting cases). In the absence of any

limiting language in Mansoori I, we may assume that the

district court had the discretion to unbundle and adjust

the defendants’ sentencing packages as necessary in

order to effectuate its sentencing intent while rectifying

the errors we had identified. See White at 832-33. Yet,

none of the discrete errors we identified in Mansoori I

implicated life terms imposed on Count One, nor did the

correction of those errors necessitate unbundling of the

defendants’ overall sentences. Relieving all three of these

defendants of the obligation to pay community restitution and reducing the special assessment that Mansoori

was obliged to pay on his monetary offenses had nothing

whatsoever to do with their prison terms. And although

Choice’s sentence on Count Two was reduced from life to

twenty years, the admittedly significant reduction of that

concurrent sentence had no impact on the overall term

that Choice was ordered to serve. It was the life term

imposed on each defendant pursuant to their convictions

on Count One that dictated the overall length of their

sentences, and we expressly held in Mansoori I that the

life sentences were not plainly erroneous. 304 F.3d at 657-

58. Whatever discretion our decision to vacate the defendants’ sentences may have given the district court on

remand, the court certainly did not abuse that discretion
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 11

in declining to re-visit their life terms on Count One and

to re-sentence them from scratch.

However, when it re-sentenced these defendants, the

district court did treat the Sentencing Guidelines as

mandatory in accord with pre-Booker precedent. The

defendants did not preserve a Booker-type objection below,

so our review is solely for plain error, as the defendants

concede. See Joint Opening Brief of Defendants Mansoori,

Cox, and Choice at 14 (“Clearly review under plain error

continues to apply here.”); Paladino, 401 F.3d at 481.

Whether or not these defendants are entitled to yet

another re-sentencing in light of Booker turns on whether

the district court might have sentenced differently knowing that the Guidelines are merely advisory. Id. at 483-84.

The record as it stands does not supply us with an answer

to that question. Accordingly, Mansoori, Cox, and Choice

are each entitled to a remand so that the district court can

consider whether it might have sentenced them more

leniently knowing that the Guidelines are advisory rather

than binding. See id. at 484; United States v. Williams, 410

F.3d 397, 404 (7th Cir. 2005), cert. denied, 126 S. Ct. 1182

(2006). If the district court answers this question in the

affirmative as to any of these defendants, then plain

error will have been established and that defendant will

be entitled to re-sentencing. Paladino, 401 F.3d at 484;

Williams, 410 F.3d at 404. If not, then their current

sentences will remain undisturbed so long as we find

them to be reasonable. Paladino, 401 F.3d 484.

We reject the defendants’ additional contention that due

process entitles them to more than the limited remand we

described in Paladino, specifically an unrestricted

opportunity—including an evidentiary hearing, if necessary—to present evidence relevant to the sentencing

factors identified in 18 U.S.C. § 3553(a). Paladino itself

affords both parties a reasonable opportunity to make

written proffers of the evidence they believe relevant to the
12 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

district court’s exercise of its broad sentencing discretion

under section 3553(a). 401 F.3d at 484. But as we observed

in United States v. Della Rose, 435 F.3d 735, 736-37 (7th

Cir.), cert. denied, 126 S. Ct. 2044 (2006), a Paladino

remand does not necessarily entitle a defendant to an

evidentiary hearing. In many if not most cases, the parties’

written submissions will be all the court needs to answer

the question posed by the Paladino remand. Id. The

district court is in the best position to know what circumstances influenced its original sentencing decision and

what information it now requires in order to determine

whether it might have sentenced any defendant differently

freed of the constraints of the Guidelines. There is no need

for us to dictate in advance what steps, if any, the district

court must take beyond soliciting the parties’ written

submissions and giving those submissions due consideration.

III.

Young’s appeal is premised on the notion that he, unlike

his co-defendants, preserved an Apprendi challenge at his

original sentencing and as a result is entitled to de novo

re-sentencing subject to a maximum prison term of twenty

years on Count One. Because Young’s counsel made an

Apprendi-like argument at the time of his original sentencing, he maintains that we were wrong to say in Mansoori

I that all of the defendants, including Young, had failed to

preserve the Apprendi argument and to confine our review

to one for plain error only. 304 F.3d at 657. As he sees it,

the district court then compounded our error when, on

remand, it left in place his life sentence on Count One.

Allowing for the possibility that Young might yet prevail

on his Apprendi claim, the district court did indicate

that if we were to decide that Young was subject to a

maximum term of years on Count One, it would impose
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 13

that term to be followed by consecutive terms of twenty

years on Count Two (the distribution charge) and another

twenty years on Count Fourteen (the money laundering

charge), for a total term of sixty years. R. 1012-2 at 29-30.

But Young characterizes this alternative sentence as

suspect, apparently because it reflects an unwillingness

to sentence him afresh, if not a vindictive intent to

punish him in the event he prevailed in this appeal.

Accordingly, Young urges us to set aside the law of the

case doctrine, recognize belatedly that he preserved his

Apprendi argument, vacate his life term on Count One,

and order him to be re-sentenced de novo subject to a

maximum prison term of twenty years on that count.

We recognize that Young may have been in a different

position with respect to his preservation of the Apprendi

argument. A footnote in the defendants’ opening brief in

the prior appeal did note Young’s counsel had raised an

Apprendi-like argument at sentencing; the same observation was made in a footnote in the reply brief as well. Our

decision did not address that distinction nor consider

whether Young, in contrast to the other defendants, had

preserved the Apprendi claim.

It is debatable whether Young actually did preserve the

argument. Young’s counsel did file a written objection that

quite accurately predicted Apprendi’s holding. However,

the objection was not filed until the day of Young’s sentencing, beyond the deadline set by the district court for

objections to the probation officer’s pre-sentence report

(which, of course, assumed a sentence of life on Count One

was permissible notwithstanding the lack of a jury verdict as to the amount of narcotics involved in the conspiracy). Young’s objection relied on the precursor to

Apprendi—the Supreme Court’s decision in Jones v. United

States, 526 U.S. 227, 119 S. Ct. 1215 (1999)—which was

decided on March 24, 1999, nearly six months before

Young’s sentencing on Wednesday, September 22, 1999. As
14 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

Young’s counsel conceded at sentencing, nothing prevented him from making his Jones objection in a timely

manner. Young Sentencing Tr. (Sept. 22, 1999) at 6.

Although the district court went on to address (and reject)

the merits of the objection, it found at the outset that the

objection was late and cited the untimeliness of the

objection as its first reason for overruling the objection. Id.

at 10 (“First of all, it will be denied as untimely . . . .”), 11

(“I said both untimely and on the merits.”). Young’s

contention that he preserved the Apprendi argument by

raising it at sentencing thus depends on us ignoring the

district court’s threshold determination that the argument was not timely made.

Nonetheless, we may set the timeliness question aside,

keeping in mind that the government itself, in responding

to Young’s petition for rehearing in the prior appeal, did

not contest the notion that Young had preserved the

argument. But even assuming that he did preserve the

Apprendi challenge, Young would not automatically be

entitled to de novo re-sentencing subject to a twenty-year

maximum prison term, as he assumes.

A sentence imposed in violation of Apprendi will nonetheless stand if the Apprendi error was harmless. See Fed.

R. Crim. P. 52(a) (“[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be

disregarded”) (emphasis ours); e.g., United States v.

Dumes, 313 F.3d 372, 384-85 (7th Cir. 2002); United States

v. Adkins, 274 F.3d 444, 454-55 (7th Cir. 2001); United

States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000); see also

Knox v. United States, 400 F.3d 519, 523 (7th Cir.), cert.

denied, 126 S. Ct. 358 (2005). In other words, the lack of a

jury finding as to drug quantity does not preclude a

reviewing court from concluding that the evidence of the

requisite quantity was so strong as to leave no doubt as to

what the jury’s finding on that subject would have been.
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 15

If the court is persuaded beyond a reasonable doubt that

a properly instructed jury would have found the necessary

drug quantity, then the error is harmless. Dumes, 313

F.3d at 384-85; Nance, 236 F.3d at 825-26.

Notably, the relevant inquiry on harmlessness review in

Apprendi cases is the same inquiry posed on plain error

review. See Nance, 236 F.3d at 825. As we observed in

Nance, “Whether or not we are applying the stringent

plain error screen, the Apprendi error . . . requires us to

ask whether it is ‘clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty

beyond a reasonable doubt.’ ” Id., quoting Neder v. United

States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838 (1999); see

also United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.

1770, 1777-78 (1993). The key distinction between the

harmless error and plain error analyses lies in the assignment of the burden of persuasion—in plain error cases, it

is the defendant’s burden to prove that the error was

prejudicial, whereas in harmless error cases it is the

government’s burden to prove that the error was not

prejudicial. Id. at 734-35, 113 S. Ct. at 1778. In either case,

however, an appeals court is looking to the same record

and engaging in the same basic inquiry to determine

whether the error affected the outcome below and in that

sense prejudiced the defendant. See Nance, 236 F.3d at

825.

We have already evaluated the impact of the Apprendi

error and concluded that it did not affect the outcome

insofar as the lengths of the defendants’ sentences on

Count One are concerned. In Mansoori I, we concluded

upon review of the trial record that a properly instructed jury would have found the defendants guilty of

conspiring to distribute the quantity of narcotics necessary

to permit life sentences on Count One. 304 F.3d at 658.

“The jury convicted the defendants on the conspiracy
16 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

charge, and the record leaves no doubt that the conspiracy

involved the distribution of far more than five kilograms of

cocaine and/or one kilogram of heroin.” Id. We cited

multiple examples of trial testimony which led us to this

conclusion, id., and our closing words on the subject made

clear that we did not view the question as a close one:

[T]he evidence before the jury consistently and overwhelmingly demonstrated that the defendants were

distributing cocaine and heroin on a very large scale.

In view of that evidence, there can be no doubt that the

jury would have found that the offense involved the

threshold amount of five kilograms of cocaine and/or

one kilogram of heroin as necessary to authorize prison

terms of life for defendants Young, Mohammad

Mansoori, Cox, and Choice.

Id. (emphasis supplied), citing Nance, 236 F.3d at 826.

That we rendered this assessment on plain error review

makes no difference insofar as Young is concerned. We

engaged in the same analysis of the evidence that we

would have engaged in had we determined that Young—or

for that matter any or all of the defendants—had properly

preserved an Apprendi argument. See id. at 825. We

resolved the inquiry adversely to Young and his co-defendants, concluding that the Apprendi error did not prejudice them. That holding is the law of the case.

Thus, even if Young did preserve his Apprendi argument,

contrary to our assumption in Mansoori I, it would make

no difference in terms of Young’s entitlement to relief. Our

holding in Mansoori I that the Apprendi error did not

affect the outcome in terms of the defendants’ responsibility for the requisite drug amounts makes clear that error

was harmless, and it therefore forecloses the relief that

Young is seeking: de novo re-sentencing subject to a

maximum prison term of twenty years on Count One.
Nos. 04-1950, 04-1974, 04-2653 & 05-3440 17

2 As we have noted, the court did provide for an alternative

total sentence of sixty years in the event that this court held

Young subject to a maximum prison term of twenty years on

Count One. But this was a sentence aimed at a possible Apprendi

problem with the statutory maximum term rather than one

which properly treated the Sentencing Guidelines as advisory

in compliance with Booker.

We have considered whether Young might be entitled to

re-sentencing or alternatively to a Paladino remand in

light of the Supreme Court’s Booker decision, but we

conclude that he is not so entitled. In contrast to the three

other appellants, Young was re-sentenced after Booker

was decided. At that time, the government suggested

that the district court take the opportunity, after it

addressed the particular errors that had prompted the

remand, to articulate an alternative sentence on all counts

of conviction that would comply with the Booker decision.

The court declined to take that step. R. 1012-2 at 29.2

However, the court did make clear on the record that

it would not sentence Young any differently notwithstanding the advisory nature of the Guidelines. Id. In so

stating, the court made clear that it understood it was

not bound by the Guidelines, and it eliminated any need

for us to order a Paladino remand. See United States v.

Julian, 427 F.3d 471, 491 (7th Cir. 2005), cert. denied, 126

S. Ct. 1444 (2006). The sentence was otherwise reasonable—it was within the Guidelines range, making it

presumptively reasonable, and Young makes no argument

that any of the sentencing factors identified in 18 U.S.C.

§ 3553(a) weigh so strongly in favor of a lesser sentence

as to rebut this presumption. See United States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005), cert. denied, 126

S. Ct. 1182 (2006).
18 Nos. 04-1950, 04-1974, 04-2653 & 05-3440

IV.

For the reasons set forth above, defendants Mohammad

Mansoori, Cox, and Choice were not entitled to de novo resentencing on remand from this court’s prior decision in

Mansoori I. They are, however, entitled to Paladino

remands at this juncture so that the district court may

consider whether it might have sentenced them differently

knowing that the Sentencing Guidelines are advisory

rather than binding. We therefore REMAND the sentences

of Mansoori, Cox, and Choice to the district court pursuant

to Paladino and retain jurisdiction over their appeals

pending the outcome of that remand.

Young is not entitled to de novo re-sentencing notwithstanding his contention that he properly preserved his

Apprendi argument and that this court erred in reviewing that argument for plain error in Mansoori I. Even if

Young did preserve the argument, the Apprendi error was

harmless for the same reasons we concluded the error was

not plain error in Mansoori I: a properly instructed jury

surely would have found beyond a reasonable doubt

that the conspiracy charged in Count One involved at

least five kilograms of cocaine and/or one kilogram of

heroin. A Paladino remand is not necessary as to Young.

The district court has stated that it would not sentence

Young differently treating the Guidelines as advisory

rather than binding. His sentence is a reasonable one. We

therefore AFFIRM Young’s sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-13-07