United States of America v. Jose Gonzalez-Zavala

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 9, 2013
Decided August 12, 2013
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-2877
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE GONZALEZ-ZAVALA,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division.
No. 1:09-cr-00546-3
William J. Hibbler,
Judge.
O R D E R
The Supreme Court vacated the judgment in this case and remanded the matter to us
so that we could consider the effect of Peugh v. United States, 569 U.S. ___, 133 S. Ct. 2072
(2013), on the case. We in turn requested Circuit Rule 54 statements from the parties. The
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 2 --

No. 11-2877 Page 2
Government responded and concedes that this case should be remanded for a new
sentencing hearing consistent with the Supreme Court’s decision in Peugh, in which the
Court held that a defendant should be sentenced under the edition of the U.S. Sentencing
Guidelines Manual in effect at the time of his offense, rather than under the edition in effect
at the time of sentencing, when the newer edition provides a higher applicable Guidelines
range. See Peugh, 133 S. Ct. at 2078. This concession is based on the Government’s
admission that, first, an error was made in the district court—i.e., the Guidelines range used
was based on sentencing enhancements that came into effect after the issuance of the
indictment charging Gonzalez-Zavala with criminal conduct—and, second, we cannot be
certain that the error was harmless. See United States v. Tovar-Pina, 713 F.3d 1143, 1148 (7th
Cir. 2013) (remanding the case because the court had “no way of knowing whether the
judge would have imposed the same sentence but for the procedural error”). We agree
with this assessment of the record. Additionally, because the original sentencing judge is
now deceased and thus unable to advise us as to whether he would have imposed a
different sentence under the correct standard, our precedent requires us to remand the case
for a complete sentencing hearing to allow the new sentencing judge to “proceed with a
clean slate.” See United States v. Bonner, 440 F.3d 414, 417 (7th Cir. 2006).
We VACATE Gonzalez-Zavala’s sentence and REMAND for resentencing using the
correct Guidelines range.

-- 2 of 2 --