United States of America v. Jose Maria Gonzales

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 31, 2005
Decided April 25, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-1406
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE MARIA GONZALES,
Defendant-Appellant.
Appeal from the United States
District Court for the
Northern District of Illinois,
Eastern Division.
No. 03 CR 216
Joan B. Gottschall, Judge.
O R D E R
After a jury convicted Jose Maria Gonzales of transporting nearly 1,500
kilograms of marijuana hidden in a load of cabbage, of all places, the district court
sentenced him to 360 months in prison. The sentence was imposed by the judge,
reluctantly as we shall see, under the then-existing view that federal sentencing
guidelines were mandatory. Gonzales appealed his sentence on a number of grounds
related to the district court’s application of the guidelines. Since his appeal was filed,
the Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005), and we
followed with United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
In Paladino, we concluded that, in order to determine whether a defendant was
prejudiced by a sentence imposed under the mandatory regime (Gonzales failed to
raise the argument in the district court and must show plain error in order to prevail),
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-1406 Page 2
we generally will order a limited remand to determine whether the district court would
have imposed the same sentence had it known that the guidelines were advisory. See
id. In those cases, if the district court then tells us that it would have given the
defendant a different sentence, we will vacate the sentence and remand for
resentencing. Id.
In this case, a limited remand serves no purpose. The point of the limited
remand is to determine what the district court would have done if it had known that
the guidelines were advisory. And, here, the district court clearly suggested that it
would have imposed a lower sentence. The judge told Gonzales on a number of
occasions that she did not think she could legally depart from the sentencing
guidelines, eventually conceding: “This is a perfect example of what Justice Kennedy
is complaining about, about sentencing that is so severe that it raises -- that it’s not
justice and that it raises real questions of morality. I’m perfectly happy with that. But
I don’t feel, without quitting my job, that I can evade the requirements of the law on
this sentence.” Given this statement of angst by the judge, even the government
agrees that there is no reason to send the case back on a limited remand. Thus, we
skip the extraneous step and VACATE Gonzales’s sentence and REMAND the case for
resentencing.

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