United States of America v. DESMOND RAY KING and PAUL MICHAEL BURGESS

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 21, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Nos. 04-1441 & 04-1442
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DESMOND RAY KING and
PAUL MICHAEL BURGESS,
Defendants-Appellants.
Appeals from the United States
District Court for the
Northern District of Illinois,
Eastern Division.
No. 03 CR 547
Elaine E. Bucklo, Judge.
O R D E R
Desmond R. King and Paul M. Burgess both pled guilty to bank robbery (21 U.S.C.
§ 2113(a) and (d)) and using a firearm during the bank robbery (18 U.S.C. § 924(c)). In
sentencing the defendants, Judge Elaine E. Bucklo treated the guidelines as mandatory, which
was, of course, consistent with the law as it existed before United States v. Booker, 125 S. Ct. 738
(2005). Following Booker, we ordered a limited remand, pursuant to United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), requiring that the judge inform us whether she would have imposed
the same sentences had she known the guidelines were advisory only.
In response to our order, Judge Bucklo stated in part:
I am unable at this time to say that I would have imposed the same
sentence if I had known the Sentencing Guidelines were merely
advisory. I therefore desire to resentence the defendants.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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Nos. 04-1441 & 04-1442 Page 2
We invited the parties to file documents regarding the appropriate disposition of the case.
Despite Judge Bucklo’s statement, the government at first opposed resentencing. However,
in light of our decision in United States v. Askew, 417 F.3d 648 (7th Cir. 2005), construing
identical language as sufficient to establish plain error at sentencing, the government has now
conceded that King and Burgess should be resentenced. Accordingly, the sentences imposed
on Desmond R. King and Paul M. Burgess are VACATED and the case is REMANDED to the
district court for resentencing.
SO ORDERED.

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