judge may not have received the full breadth of arguments that the parties would have produced
in the original sentencing had they known at that time that the Guidelines were to be applied in
an advisory manner. See e.g., United States v. Sumner, 325 F.3d 884, 888-89 (7th Cir. 2003)
(allowing for the introduction of new evidence by the prosecutor during remand for resentencing
under a plain error review because a plain error is one that is not known or explored during the
original sentencing and therefore the parties would not have properly addressed the matter during
the original sentencing). A sentencing court cannot answer the Paladino limited remand
question of whether it would have imposed a lesser sentence, and therefore whether prejudice has
resulted without first receiving the further argument and information that the parties desire to
present.

The fact that this court has reviewed and considered Henry’s new information and
allowed further argument from the parties, does not mean that we are writing a completely clean
slate when it comes to the issues litigated at the time of the original sentencing. Any information
considered by the court is still within the context of the overarching question of the Paladino
limited remand, namely this court’s determination of the effect of sentencing Henry under the
mandatory Guidelines when considered advisory. Furthermore, if the Paladino limited remand
results in a resentencing, the court may give little weight to some information, greater weight to
other information during resentencing process than the court considered during the Paladino
limited remand, and some information should not be considered at all on resentencing. See e.g.,
United States v. Noble, 367 F.3d 681, 682 (7th Cir. 2004) (holding that the government cannot
try to introduce evidence to meet its burden of proof for the sentencing on the quantity of drugs

related to uncharged drug-related misconduct on remand when the government failed to meet its

14


mandatory Guidelines system. Paladino, 401 F.3d at 483 (“[I]f the judge would have imposed
the same sentence even if he had thought the Guidelines merely advisory ... there is no prejudice
to the defendant.”); see e.g., United States v. Goldberg, 406 F.3d 891, 894 (7th Cir. 2005) (noting
that the district court judge’s treatment of the Guidelines as mandatory is plain error when the
district court judge would have imposed a shorter sentence if the judge had known the Guidelines
were merely advisory).

The Seventh Circuit determines whether the third prong of the plain error test, whether
the defendant experienced prejudice by being sentenced under the mandatory Guidelines, is
satisfied through one of two methods. The first method for the Seventh Circuit to evaluate
whether prejudice has occurred is by reviewing the district court record and determining without
further input from the district court, what the district court would have done had that court
known that the Guidelines were advisory instead of mandatory. United States v. Lee, 399 F.3d
864, 866 (7th Cir. 2005) (examples of situations where the Seventh Circuit might be able to
determine on its own whether prejudice occurred through a review of the district court record
include: (1) the district court judge had no discretion on the sentence because the court was
required to impose a mandatory sentence statute independent from the Guidelines; (2) the
defendant experienced no prejudice under the original sentence because the mandatory
Guidelines prohibited the district court judge from imposing a higher sentence or the judge made
a mistake in sentencing that benefitted the defendant; (3) the district court judge provided an
indication that he or she was constrained from departing downward due to a procedural default
that occurred during the sentencing procedure); see e.g., United States v. Henry, — F.3d —, No. 04-

2036, 2005 WL 1243337, at *4 (7th Cir. May 26, 2005) (“We note, though, that the district


court did not add a 2 point enhancement for the use of a child in the crime and rejected Henry’s
request for a four point reduction as a minor participant reduction based on the information to
which Henry plead guilty. (/d. at pg. 11-14). However, the statutory maximum sentence for 21
U.S.C. § 843(b) is 48 month, so the sentencing range effectively became 46 to 48 months.

The parties disputed the relevant conduct that Henry was involved in. The indictment
alleged a person named “Mike” was involved in the conspiracy and Henry asserted he was not
the person alleged as “Mike.” The court heard from the lawyers and, of course, from Henry
himself. The court imposed a sentence based on the offense to which Henry had admitted and
plead guilty. (/d. at pg. 37). Henry was sentenced to forty-eight (48) months in prison, $10,000
fine, and the $100 special assessment. (Dkt. No. 325, Tr. pg. 37). The court also originally
imposed five years of supervised release but that was later reduced by an amended sentencing
order of September 3, 2003 to one year of supervised release. (Dkt. No. 392).

As instructed in Paladino, this court has obtained the written views of counsel on this
issue. The government argues that there is no indication that Henry would have received a lesser
sentence had the Guidelines been advisory. Henry argues that this court should inform the
Seventh Circuit that it wishes to impose a lesser sentence. Henry also has provided letters from
his family discussing the impact that his imprisonment has had on his family and especially his
young children.

Considering all that is before this court, this court informs the Seventh Circuit that it
would have imposed the same sentence that this court actually imposed on Henry had this court
known that the Guidelines were advisory instead of mandatory. The court imposed a sentence of

48 months which is near the lowest end of the sentencing Guideline range. The court had

18


“lesser sentence.” The Goldberg opinion appears to indicate that the imposition of a new higher
sentence, although not a significant risk, was still possible under Paladino if damaging new
information had come to light since the Paladino remand.' However, the Goldberg opinion
characterizes the Paladino limited remand as one asking the district court “judge whether he
would have given the defendant a shorter sentence had he realized the Guidelines are merely
advisory.” /d. (emphasis added).

The factual situation in Goldberg the Seventh Circuit contemplated is when the district
court that originally sentenced under the mandatory Guidelines has responded that if the district
court had the additional discretion accorded it under the advisory Guidelines, the district court
would have imposed a lesser sentence. Based on this answer, the Seventh Circuit would
determine that the defendant was prejudiced by the imposition of a sentence under the mandatory
Guidelines, prong three of the plain error test would then be satisfied and a remand for
resentencing would occur. After that remand but before the resentencing, the district court is
made aware of new facts that are damaging to the defendant and change the district court’s
decision on resentencing and the result is the imposition of a higher sentence at resentencing.

It appears that the district court can only answer that it would impose a different sentence
under the advisory Guidelines as compared to the sentence it imposed under the actual mandatory
Guidelines, if that different sentence under the advisory Guidelines would be a lesser sentence.

As Judge Posner held in Goldberg, the Paladino limited remand asks the district court “judge

' “Although the sentence range was at the midpoint of the Guideline range, the range is
now merely advisory. Judge Shadur made clear that he was disturbed by the magnitude of
Goldberg’s fraud and moved by the letters from which we quoted. He might want to give
Goldberg a longer sentence, and if the departure were a reasonable one we would have to
affirm.” United States v. Goldberg, 406 F.3d 891, 894 (7th Cir. 2005).

10


401 F.3d at 484, under the advisory Guideline system that judge imposed under the mandatory
Guideline system, and therefore determining that the fact that the Guidelines are now advisory
instead of mandatory would have had no impact on its sentencing decision. /d. Under this
procedure, the district court then informs the Seventh Circuit that there is no reason to vacate the
old sentence and remand for resentencing because the district court would merely reimpose the
same sentence. Therefore, the prejudice requirement of the third prong of the plain error test
cannot be met because the transformation of the Guidelines from mandatory application to an
advisory application has had no impact on the district court’s sentencing decisions in the case.

The Paladino opinion added a word of caution for any district court that decided to
respond that it would impose the same sentence if the district court was required to resentence
and therefore the change in the Guidelines created no prejudice in its case. That word of caution
is Booker's other remedial component, the review of sentences imposed under the advisory
Guidelines for reasonableness, which the Seventh Circuit said it applied on appellate review of
the district court’s decision. /d. “The proviso is important; the mere reimposition of the original
sentence does not insulate [the original sentence] from appellate review under the new
[reasonableness] standard.” /d. The implicit instruction from the Seventh Circuit is that district
courts should refrain from the “knee-jerk” reaction of simply saying that it wil! reimpose the
same sentence without fully considering the issue.

In the alternative, the district court may after receiving a Paladino limited remand inform
the Seventh Circuit that the district court “would have imposed a different sentence had [the
district court] known the Guidelines were merely advisory.” Paladino, 401 F.3d at 484. In this

situation, the Seventh Circuit will vacate the old sentence and remand for resentencing. The


court’s discretion to impose a lower sentence will be constrained by a 10 year mandatory-
minimum.”); United States v. Douglas, — F.3d -, No. 03-2566, 2005 WL 1243356, at *7 n.1 (7th
Cir. May 25, 2005) (noting that there was no Booker / Paladino issue when the defendant’s
sentence of a mandatory life imprisonment was imposed pursuant to an independent statute and
was not a product of the Guidelines).

The other method of determining whether a defendant suffered prejudice from being
sentenced under the unconstitutional mandatory Guideline system is for the Seventh Circuit to
ask the district court, through a limited remand, whether the district court would have imposed a
different sentence, (and presumably lower sentence), had the district court known that the
Guidelines were advisory instead of mandatory, This second procedure is the Paladino limited
remand procedure which was announced on February 25, 2005.

In the Paladino case, Judge Posner stated that “[t]he only practical way (and it happens
also to be the shortest, the easiest, the quickest, and the surest way) to determine whether the
kind of plain error argued in these cases has actually occurred is to ask the district judge.” 401
F.3d at 483. Judge Easterbrook in United States v. Lee, which was decided the same day as
Paladino, characterized the Paladino remand as a mechanism “to avoid aimless speculation” as
to what the district court would have done had it realized that it should have sentenced under the
advisory Guidelines. 399 F.3d 864, 866 (7th Cir. 2005). The Paladino limited remand “is
necessary only when uncertainty otherwise would leave [the Seventh Circuit] in a fog about what
the district judge would have done with the additional discretion.” Jd.

A district court judge receiving a limited remand under Paladino is asked to decide

whether he or she “would (if required to resentence) reimpose [the] original sentence,” Paladino,


discretion to impose a lower sentence under the Guidelines then considered mandatory, 46 or 47
months. The court chose not to exercise that discretion within the mandatory Guideline range.
The fact that the court did not exercise its discretion to impose a lesser sentence within the
mandatory Guidelines assists the court in now concluding that it would not have imposed a lesser
sentence even if the court had known that it had additional discretion under the advisory
Guidelines. Moreover, the involvement of Henry in the crime to which he pleaded guilty
required the maximum sentence under the statute which was 48 months.

The court understands and appreciates the information presented by Henry as to the
impact that his incarceration has had on his family and children. The court was aware of Henry’s
family, however, at the time of the original imposition of his sentence and the difficulties
Henry’s family faces are not usual in light of Henry’s incarceration. Consequently, the court
does not believe that this information would have resulted in the imposition of a lesser sentence
if Henry had been sentenced under the advisory Guidelines.

CONCLUSION
For the reasons set forth above, this court informs the Seventh Circuit, pursuant to the
Paladino limited remand ordered in United States v. Henry, 124 Fed. Appx. 464 (7th Cir. 2005),
that upon a remand for resentencing, this court would impose the same sentence that it originally

imposed on Henry on October 31, 2002.

ENTER:

9. Aipbemme

AMES F. HOLDERMAN
‘United States District Judge

DATE: June 7, 2005

19


sentence should not be vacated and the case remanded for resentencing if a district court wishes
to impose a “different,” yet higher, sentence under the advisory Guidelines.

The issue of whether a Paladino limited remand should result in the vacating of the
original sentence if the district court desires to impose a “different sentence” or a “lesser
sentence” has been clarified in United States v. Goldberg. 406 F.3d 891 (7th Cir. 2005). The
Goldberg opinion involved a challenge to the imposition of sentencing enhancements by the
district judge, or in the alternative, sought a Paladino limited remand. Id. at 892. The Goldberg
court, in evaluating the impact of vacating the sentence under the challenge to the sentencing
enhancements, held that “[aJny resentencing would be conducted under the new, post-Booker
regime, in which the Guidelines are merely advisory, and so [the defendant] would be exposed to
the risk of a higher sentence.” /d. at 894. The Seventh Circuit rejected the defendant’s argument
that the pre-Booker sentence was a ceiling in the case of resentencing unless there had been a
change in factual situation. /d. (“No inference of vindictiveness would arise from the exercise of
the judge’s new authority.”).

The Goldberg court did discuss the Paladino limited remand stating that:

The risk that the judge might increase the sentence is not significant in a Paladino

remand. Such a remand asks the judge whether he would have given the

defendant a shorter sentence had he realized the Guidelines are merely advisory.

... [I]t would be an unusual case, to say the least, in which the judge would impose

a heavier rather than a lighter sentence; presumably it would be a case in which

damaging new information had come to light since the Paladino remand.
Td. at 894-95 (emphasis added).

The language of Goldberg discussing the Paladino limited remand therefore clarifies the

question of whether the Paladino court meant the words a “different sentence” to be limited to a


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff }
v. } No. 01 CR 1098 - 3
LANCELOT HENRY }
Defendant. }

MEMORANDUM OPINION AND ORDER

The Seventh Circuit issued a limited remand on April 4, 2005 instructing this court,
pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to provide the Seventh
Circuit this court’s views as to the probable result of resentencing of defendant Lancelot Henry
(“Henry”), applying the United States Sentencing Guidelines (“Guidelines”), in an advisory
manner. 124 Fed. Appx. 464 (7th Cir. 2005). For the reasons set forth below, this court informs
the Seventh Circuit that upon a remand for resentencing using the Guidelines as advisory, this
court would impose the same sentence that it originally imposed on Henry.

A. The Paladino Limited Remand

1. The Purpose of the Paladino Limited Remand

The Supreme Court’s decision in United States v. Booker held that the Sixth Amendment
rights enumerated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, —
U.S. -, 124 S. Ct. 2531 (2004), also apply to defendants being sentenced in federal court under
the Federal Sentencing Guidelines. ~ U.S. ~, 125 S. Ct. 738 (2005) (Stevens, J. Opinion). The
Booker court held that the proper remedy was to alter the Sentencing Reform Act by making the

Guidelines advisory instead of mandatory. Jd. at 758 (Breyer, J. Opinion). The Paladino limited


2. Procedures for the District Court When Implementing the Paladino Limited Remand

The procedure the district court should follow to develop the necessary record needed for
the Seventh Circuit’s review under the Paladino limited remand is set out in the Paladino
opinion. That prescribed procedure requires that “the district court should obtain the views of
counsel, at least in writing, but ‘need not’ require the presence of the defendant.” 401 F.3d at
484. Consequently, a hearing in open court is not required, but it appears from the Paladino
opinion that the district court has the discretion to hold a hearing if it chooses. See /d. (“Upon
reaching its decision (with or without a hearing) whether to resentence ...”). The district court
shall inform the Seventh Circuit of its decision to keep the prior sentence or request a vacating of
the prior sentence to allow a remand for a new sentence by “placing on the record a decision not
to resentence, with appropriate explanation, or inform [the Seventh Circuit] of the [district
court’s] desire to resentence the defendant.” /d.

The Paladino opinion does not detail any additional procedures that the district court
should take and the Seventh Circuit has not yet provided additional guidance on this issue in

subsequent opinions.’ In performing the present Paladino limited remand in this case, this court

3 See e.g., United States v. Henry, ~ F.3d —, No. 04-2036, 2005 WL 1243337, at *4 (7th
Cir. May 26, 2005) (Rovner, J.) (“[WJe must direct a limited remand under the procedure
outlined in Paladino.”), United States v. Schmeilski, — F.3d -, 2005 WL 1243353, 2005 WL
1243353, at *3 (7th Cir. May 25, 2005) (Williams, J.) (“The sentencing judge should proceed on
remand in accordance with the procedures we set forth in Paladino.”), United States v. Duran, —
F.3d -, No. 03-2506, 2005 WL 1163633 (7th Cir. May 10, 2005) (Ripple, J.) (“We ... order a
limited remand of the sentence consistent with the procedure outlined in Paladino.”); United
States v. Arroyo, 406 F.3d 881, 891 (7th Cir. 2005) (Flaum, C.J.) (“We retain jurisdiction and
remand to the district court pursuant to the procedure set forth in Paladino.”), United States v.
Ngo, 406 F.3d 839, 844 (7th Cir. 2005) (Cudahy, J.) (“[W]e will retain jurisdiction over the case
but order a limited remand to the district court in keeping with the procedure outlined in
Paladino.”); United States v. Askew, 403 F.3d 496, 510 (7th Cir. 2005) (Kanne, J.) (“The district
court is directed to return this case to use at the completion of its sentencing determination,

12


whether he would have given the defendant a shorter sentence had he realized the Guidelines are
merely advisory.” Jd. (Judge Posner is the author of both the Goldberg and Paladino opinions.)*

A district court’s desire to impose a greater sentence under the advisory Guidelines, while
a “different sentence,” would not demonstrate that the defendant was prejudiced by the
imposition of the original sentence under the mandatory Guidelines. There is no prejudice and
prong three of the plain error test is not satisfied, when the defendant would not have received a
lesser sentence. However, as the example in Goldberg demonstrates, any resentencing is done
under the advisory Guideline system and the district court judge does have discretion, including
the discretion to increase the sentence beyond what was imposed in the old sentence, once the
Seventh Circuit has vacated the old sentence and remanded for resentencing.

The best approach appears to be to provide a detailed explanation of the court’s reasoning
for why it believes it would or would not impose a new sentence if it resentenced the defendant.
This recognizes that Seventh Circuit retains jurisdiction during the Paladino limited remand and
therefore it is the Seventh Circuit’s decision, not the district court’s decision, whether the plain
error test has been satisfied. The district court’s task under the Paladino limited remand is to
provide information to the Seventh Circuit so as to help facilitate the Seventh Circuit in its

appellate review.

2 In United States v. Schmeilski, Judge Williams quoted Goldberg's “shorter sentence”
language when ordering a Paladino limited remand, — F.3d. -, No. 04-2014, 2005 WL 1243353,
at *3 (7th Cir. May 25, 2005) (quoting United States v. Goldberg, 406 F.3d 891, 894 (7th Cir.
2005)), and in United States v. Woodard, Judge Easterbrook stated that the limited remand under
Paladino was “so that the district judge may say whether he would have imposed a lower
sentence had he anticipated the additional discretion afforded by Booker.” — F.3d —, No. 04-
2498, 2005 WL 1164002, at *3 (7th Cir. May 18, 2005).

11


Seventh Circuit was very clear to point out that a Paladino remand is a limited. Its only purpose
is to allow the district court to decide what it would have done had the advisory Guideline system
been in effect at the time the original sentence was imposed. The Seventh Circuit retains
jurisdiction over the case for all other purposes. Jd. A district court wishing to resentence must
inform the Seventh Circuit of that decision, and only then the Seventh Circuit “shall vacate the
sentence” and remand for resentencing. /d. The Paladino limited remand does not give the
district court sufficient jurisdiction to vacate the sentence on its own. Only when the Seventh
Circuit vacates the originally imposed sentence and remands the case for resentencing can the
district court impose a new sentence under the advisory Guidelines. This newly imposed
sentence is then reviewed by the Seventh Circuit under the Booker reasonableness standard.
There is some uncertainty as to what the Paladino court meant in its use of the phrase a
“different sentence” regarding the district court’s decision in response to the Paladino limited
remand. The purpose of the Paladino limited remand is to determine whether prong three of the
plain error test is satisfied, namely whether the defendant has experienced prejudice through the
imposition of his sentence under the unconstitutional mandatory Guidelines. There is no
prejudice to a defendant if he received a lesser sentence under the unconstitutional mandatory
Guidelines when compared to higher sentence that the district court may have wanted to impose
if the district court was able to resentence the defendant under the advisory Guidelines. Put
differently, there is no prejudice to the defendant if the mandatory Guidelines prevented the
district court judge from imposing a higher sentence but there would be prejudice if the
mandatory Guidelines prevented the district court judge from imposing a lower sentence. If there

is no prejudice to the defendant, then the third prong of the plain error test is not satisfied. A


The defendant on review will be able to satisfy easily the first and second prongs of the
plain error test because he was sentenced under the mandatory Guidelines procedures. The
Seventh Circuit has held that sentencing a defendant under the mandatory Guidelines system is
an (1) error and (2) that the error is plain. United States v. Askew, 403 F.3d 496, 509 (7th Cir.
2005) ({The defendant’ s] “sentence was imposed under a sentencing scheme that we now know
is unconstitutional. [The defendant’s] sentence, therefore, was imposed in error, and the error is
plain.”). Furthermore, the fourth prong, that the error seriously affects the fairness, integrity, or
public reputation of the proceedings, is satisfied when the defendant received a more severe
sentence under the unconstitutional mandatory Guidelines when compared to a theoretical
sentence the district court would have imposed under the advisory Guidelines procedure. United
States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005) (“To tell a defendant we know your
sentence would have been 60 months shorter had the district judge known the Guidelines were
merely advisory ... ~ but that is your tough luck and you'll just have to stew in prison for 60
additional months because of an acknowledged violation of the Constitution — would undermine
the fairness, the integrity and the public repute of the federal judicial process.”).

The third prong of the plain error test, whether the defendant’s substantial rights have
been affected, is the central issue for the plain error review. A plain error affects the defendant’s
substantial rights when the plain error is “prejudicial, in that it ‘affected the outcome of the
district court proceedings.” United States v. Macedo, 406 F.3d 778, 790 (7th Cir. 2005) (quoting
Olano, 507 U.S. at 734). A defendant’s substantial rights are only affected when he would have
received a lesser sentence from the district court under the post-Booker advisory Guidelines

when compared to the actual sentence imposed by the district court under the unconstitutional


burden on that issue during the original sentencing).

The last issue on which the court should comment before ruling on the Paladino limited
remand in Henry’s case is the arguments presented by the parties over the appropriate weight to
be given to the sentencing Guidelines now that the Guidelines are advisory. The parties’
arguments mirror a division that is growing among the district courts after Booker on this issue.
Compare United States v. Ranum, 353 F. Supp. 2d 984 (E.D. Wis. 2005), with United States v.
Wilson, 355 F. Supp. 2d 1269 (D. Utah 2005).

The government’s position is that the sentencing Guidelines, although now advisory
instead of mandatory, should still be given considerable weight by the court when determining a
sentence. Henry’s position is that the Guidelines are now just one factor among the various
factors established under the Sentencing Act, 18 U.S.C. § 3553, and therefore should be given no
special authority or weight in the court’s determination of a sentence.

The Seventh Circuit in United States v. George held that, “it is enough to calculate the
[Guideline] range accurately and explain why (if the sentence lies outside it) this defendant
deserves more or less.” 403 F.3d 470, 473 (7th Cir. 2005). This court believes, therefore, that
the proper approach regarding the weight to be given to the Guidelines is to start the sentencing
process by calculating the Guideline range. Then the court should consider and give weight to
that range, consider any Guideline departures, and determine what sentence is reasonable to
impose. This court, of course, understands that it has discretion to vary from the Guideline range
in imposing a reasonable sentence. However, the court believes that Henry’s argument that the
court should treat the Guidelines as merely one of several factors perhaps pushes the court’s

consideration too far away from the Guideline range calculation which is still the preliminary

15


court.

The indictment alleged the importation of cocaine and heroin from Panama and Jamaica
to Chicago. A percentage of the illegal drugs were alleged to have been exported to other
locations within the United States and to the United Kingdom. The plan admitted by several
defendants used young women as couriers for the drugs. The alleged scheme was that young
women would take an infant, either their own child or a child rented from others, with them
when transporting the drugs. The use of the children allowed the placement of the drugs in baby
formula cans in the hope of avoiding detection by law enforcement.

Henry’s criminal action, as agreed to by both sides in the plea agreement, was his placing
of a telephone call from his location in Ontario, Canada to Kim Washington in Chicago, Illinois
on April 19, 1999. (/d. at 45). Henry used the phone call to provide Washington with
information that she then used to obtain a $750 money transfer that Henry had sent, under the
direction of Byron Watson, to Washington. Washington, who had been recruited by Watson to
smuggle drugs, used the money to buy an airline ticket from Chicago to Panama and also rented a
baby for the trip. Washington received cocaine-filled baby formula cans from Watson in Panama
and smuggled the cans back to Chicago. She delivered one drug filled baby formula can to a
contact in Chicago and then delivered the remaining drug filled cans to New York.

At Henry’s sentencing on October 31, 2002, the court first determined under the
mandatory Guidelines system that Henry’s adjusted offense level was 23, which under the 2001
version of the Sentencing Chart resulted in a sentencing range of 46 to 57 months. (Oct. 31,
2002 Tr. at pg. 14). The offense level of 26 was calculated based on the quantity of drugs

involved and then reduced by three points for Henry’s timely acceptance of responsibility. The

17


level. The result is that the defendant’s sentence will be vacated and the case is remanded to the
district court for resentencing in light of the Booker decision. See Schlifer, 403 F.3d at 854
(holding that the defendant’s objection based on Blakely grounds was sufficient to preserve his
objection to the imposition of a sentence under the mandatory Guidelines).

If the defendant did not preserve an objection to the imposition of a sentence by the
district court under the procedures of the mandatory application of the Guidelines, then the
question becomes why did the defendant fail to present the objection before the district court. A
defendant who knowingly, intentionally and voluntarily relinquished or abandoned his known
right to bring his Sixth Amendment challenge to the imposition of a sentence under the
procedures of the mandatory application of the Guidelines has waived the Booker constitutional
violation, and the Seventh Circuit should affirm the sentence on this issue. United States v.
Cunningham, 405 F.3d 497, 503 (7th Cir. 2005) (citing United States v. Olano, 507 U.S. 725,
733 (1993); United States v. Penny, 60 F.3d 1257, 1261 (7th Cir. 1995)).

A defendant who merely forfeited his objection by “failing to make a timely assertion” of
his right is entitled to a plain error review of his sentence under Booker. Cunningham, 405 F.3d
at 503 (citing Olano, 507 U.S. at 733; United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996);
Fed. R. Crim. P. 42(b)). Under the plain error review, “an appellate court can correct an error
that the defendant failed to raise [before the district court] only when there was (1) error, (2) that
is plain, and (3) that affects substantial rights. ... If these [three] conditions are met, an appellate
court may exercise its discretion to notice a forfeited error if (4) the error seriously affects the
fairness, integrity, or public reputation of the proceedings.” United States v. Henningsen, 402

F.3d 748, 750 (7th Cir. 2005) (citing Olano, 507 U.S. at 732; Paladino, 401 F.3d at 471)).


remand is a consequence of the Booker decision because the Booker decision must be applied to
all defendants who are on direct appeal as of Booker 's January 12, 2005 release date. Jd. at 770
(“As these dispositions indicate, we must apply today’s holdings — both the Sixth Amendment
holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.”);
see e.g., United States v. Schlifer, 403 F.3d 849, 853 (7th Cir. 2005) (“Thus in every pending
appeal where the district court sentenced a defendant under the now-defunct mandatory
Guidelines scheme, error will have been committed.”); compare McReynolds v. United States,
397 F.3d 479, 481 (7th Cir. 2005) (“[B]ooker does not apply retroactively to criminal cases that
become final before its release on January 12, 2005.”).

Although Booker is now applied to every defendant on direct appeal, and a district court’s
prior imposition of a sentence under the mandatory sentencing Guidelines was error, see United
States v. Castillo, 406 F.3d 806, 823 (7th Cir. 2005) (quoting United States v. White, 406 F.3d
827, 835 (7th Cir. 2005) (“[T]he mere mandatory application of the Guidelines — the district
court’s belief that it was required to impose a Guideline sentence ~ constitutes error.”)), “the
existence of error, however, does not mean that every appeal must Jead to resentencing.”
Schlifer, 403 F.3d at 853. Instead, the Seventh Circuit must classify the type of error caused by
the district court’s imposition of a sentence under the mandatory Guidelines system when the
defendant challenges his sentence on direct appeal. The classification of the error determines
what type of review the Seventh Circuit will undertake in evaluating the impact of the error, and
in turn, what actions, if any, must be taken by the district court to rectify the error in sentencing.

The Seventh Circuit’s review is plenary when the defendant preserved an objection under

the Sixth Amendment to sentencing under the mandatory Guidelines system at the district court


has reviewed the record from the original sentencing proceeding, including the docket and
associated materials, in addition to obtaining the views of counsel. The original sentencing
record includes the plea agreement, the presentence report with associated objections, the
transcript of the sentencing proceeding and the Judgment and Commitment order.

The government argues that the court should limit its review under the Paladino limited
remand to the record from the time of the original sentencing. Henry counters that the court
should consider additional information beyond the original sentencing record. Henry wishes to
include new information of letters from his wife and other family members. The letters from
Henry’s family discusses the negative impact that Henry’s imprisonment has had on his family
and specifically on his young children.

The court believes that it has discretion to allow the introduction of new information and
need not limit itself merely to the record of the original sentence. The Paladino opinion explicitly
requires that “the district court should obtain the views of counsel, at least in writing ... .” 401
F.3d at 484. The defendant and his lawyer at the time of the original sentencing under the
mandatory Guideline system might have decided not to include certain types of information
because that information would have had only minimal relevance when the court was operating
under the mandatory sentencing system. That information as well as new information might now
have considerable relevance under the advisory Guidelines system. The original sentencing
record was not produced with an understanding that it would later be reviewed by the district

court under a limited remand using an advisory Guidelines system. Therefore, the sentencing

(continued) pursuant to the procedures set forth in Paladino.”), United States v. Mykytiuk, 402
F.3d 773, 778 (7th Cir. 2005) (Wood, J.) (“{T]he [district court] judge should follow the
following procedure outlined in Paladino.”).

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step in the sentencing process.

In considering the limited remand issue in this case, the court has received the written
arguments from the parties, has identified the information that is appropriate for the court’s
review, and has determined the proper way to evaluate Henry’s sentence if the court had known
that the Guidelines were advisory instead of mandatory when the court imposed Henry’s original
sentence on October 31, 2002. The court believes it is now in the position to decide the sentence
the court would have imposed at the time of original sentencing had the court considered the
Guidelines as advisory instead of mandatory. Therefore, the court believes it is in position to
provide the record for the Seventh Circuit’s review on the question of whether Henry was
prejudiced by the imposition of his original sentence under the now unconstitutional mandatory
Guidelines.

B._ Application of the Paladino Limited Remand Procedure to Henry’s Sentence

Henry plead guilty on June 28, 2002 (Dkt. No. 216), to one count of knowingly and
intentionally using and causing to be used a communication facility, namely a telephone, in
committing and causing and facilitating the commission of a felony violation of Title 21, United
States Code, Sections 952 and 963, namely, conspiracy to import mixtures containing cocaine,
from Panama to the United States, in violation of Title 21, United States Code, Section 843(b).
(Dkt. No. 218 at § 1). Henry was one of 26 defendants indicted in the “Baby Formula” case.
United States v. Watson-Herrera et al., No. 01 CR 1098.

Twenty-three defendants have been convicted in this case and sentenced. Three are
considered fugitives. The lead defendant, Clacy Watson-Herrera, is in the custody of the

government of Panama awaiting requested extradition to the United States for trial before this

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