United States of America v. Babajide Sobitan

*After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2005*
Decided July 11, 2005
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2739
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BABAJIDE SOBITAN,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division
No. 03 CR 450
John W. Darrah,
Judge.
O R D E R
Babajide Sobitan was convicted of attempting to reenter the United States
without authorization after having been deported, 8 U.S.C. § 1326(a), and was
sentenced to 97 months’ imprisonment. He argues under United States v. Booker,
125 S. Ct. 738 (2005), that the district court improperly treated the sentencing
guidelines as mandatory and impermissibly increased his offense level based on
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2739 Page 2
facts found only by a preponderance of the evidence. Sobitan preserved these
arguments by objecting at sentencing, and thus our review is plenary. United
States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005); United States v. Hollis, 230
F.3d 955, 958-59 (7th Cir. 2000); United States v. Paz, 405 F.3d 946, 948-49 (11th
Cir. 2005). Thus we must vacate Sobitan’s sentence unless the government can
establish that the error was harmless, Schlifer, 403 F.3d at 854, a burden that the
government concedes it cannot meet here. Accordingly, we VACATE Sobitan’s
sentence and REMAND for resentencing in light of Booker. See id.

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