United States of America v. Chaska J. Carrillo

* 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 August 31, 2005*
Decided September 2, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-4021
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHASKA J. CARRILLO,
Defendant-Appellant.
Appeal from the United States
District Court for the Western District
of Wisconsin
No. 04 CR 110
Barbara B. Crabb,
Chief Judge.
O R D E R
Chaska Carrillo pleaded guilty to distributing cocaine base in violation of 21
U.S.C. § 841(a)(1) and was sentenced to 151 months’ imprisonment and three years’
supervised release. He now argues that he is entitled to resentencing in light of
United States v. Booker, 125 S. Ct. 738 (2005), and United States v. Schlifer, 403
F.3d 849 (2005). Like the appellant in Schlifer, Carrillo argued in the district court
that increasing his offense level under U.S.S.G. § 4B1.1 (establishing elevated
offense levels for “career offenders”) without submitting the matter to a jury
violated his rights under the Sixth Amendment. We rejected that argument on the
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-4021 Page 2
merits in Schlifer, 403 F.3d at 853, but nonetheless accepted it as sufficient to
“preserve” the appellant’s right to challenge his sentence under the remedial
holding in Booker, id. at 854.
There is error in every sentence imposed under the old mandatory guidelines
regime. Schlifer, 403 F.3d at 853. Because Carrillo adequately preserved an
objection, we must vacate the sentence unless the government can show that the
error was harmless. Id. at 854. The government concedes that it cannot meet that
burden. Accordingly, we VACATE Carrillo’s sentence and REMAND the case for
resentencing.

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