# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

July 20, 2005

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 03-2574

UNITED STATES OF AMERICA,

Plaintiff-Appellee

,

v.

ULICE ASKEW,

Defendant-Appellant

. Appeal from the United States District

Court for the Northe rn District of

Illinois, Eastern Divison

No. 02 CR 37

Elaine E. Bucklo,

Judge

.

ORDER

On April 5, 2005, we ordered a limited remand pursuant to United States v.

Paladino

, 401 F.3d 471 (7th Cir. 2005), so that we could determine whether the district

court would have imposed the same sentence had the United States Sentencing

Guidelines been merely advisory at the time that Askew was sentenced. See United

States v. Booker , 125 S. Ct. 738 (2005).

On June 29, 2005, the district court responded as follows:

I am unable at this time to say that I wou ld have imposed the same

sentence if I had known the Sentencing Guidelines were merely advisory. UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 03-2574 Page 2

I therefore desire to resentence the defendant.

On July 6, 2005, the government indicated that it opposes any resentencing of

Askew. (7/06/2005 Gov’t Opp. to Resentencing.) The government contends that Askew

has not met

his burden of showing plain error and thus is not entitled to be

resentenced. The government interprets the district court as expressing only a p resent

desire to resentence Askew, because the judge was “unable at this time to say” whether

she would have imposed the same sentence. ( I d. (“The opera tive time to consider

whether p lain error was committed is not the present, that is the district court’s

current feelings about the sentence, but whether when initially sentencing Askew, the

district judge would have been inclined to sentence him to a lesser term had she know

[sic] the guidelines were merely advisory.” (emphasis in original).)

The government takes an unduly narrow view of the district judge’s response and

the purpose of our limited remand. In P aladino

, we stated that “[i]f

. . . the judge

states on limited remand that he would have imposed a different sentence had he

known the guidelines were merely advisory, we will vacate the original sentence and

remand for resentencing.” 401 F.3d at 484. True, the district judge’s response uses

wording that does not precisely mir ror the language quoted. But the judge’s words

respond to and track other language in Paladino indicating that “if the j udge would

have imposed the same sentence even if he had thought the guidelines merely advisory

. . . there is no prejudice to the defendant.” I d. at 483. The judge certainly did not say

that she would have imposed the same sentence. In fact, the judge unambiguously

expressed her desire to resentence Askew. See id. at 484.

The important point here is that we interpret the district judge’s response as an

affirmative answer to our question whether plain error occurred in Askew’s case

. Paladino does not require a ny particular “magic words” to that effect, only that the

district judge indicate whether she would have imposed a different sentence under an advisory Guideline scheme. In our view, the district judge’s response adequately

expresses that she would have done just that.

Accordingly, we V ACATE Askew’s original sentence and R EMAND this matter to the

district court for resentencing.