United States of America v. Jose R. Nieves-Gonzalez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 27, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3580
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE R. NIEVES-GONZALEZ,
Defendant-
Appellant.
Appeal from the United States
District Court for the Eastern District
of Wisconsin.
No. 04 CR 70
J. P. Stadtmueller, Judge.
O R D E R
After pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a), the
district court sentenced Jose Nieves-Gonzalez to 48 months imprisonment. On May
17, 2005, while retaining jurisdiction, we ordered a limited remand of the appellant’s
sentence to the district court under United States v. Paladino, 401 F.3d 471 (7th Cir.
2005). The purpose of the limited remand was to permit the district court to inform us
whether it would have imposed the same sentence knowing that the United States
Sentencing Guidelines are merely advisory.
The district court held a re-sentencing hearing on September 30, 2005. In an
“Amended Judgment” that day, it amended Nieves-Gonzalez’s sentence to a 40 month
term of imprisonment. As we explained in United States v. Duncan, 427 F.3d 464, 465
(7th Cir. 2005), the district court went beyond the scope of its jurisdiction on remand
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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when it re-sentenced the defendant. Therefore, the district court’s amended judgment
No. 04-3580 Page 2
of September 30, 2005 is VACATED. We construe the amended judgement as the
district court’s indication that it would have sentenced the defendant differently had
it known that the Guidelines are advisory, and therefore the case is REMANDED to
the district court for the district court to re-sentence the defendant.

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