United States of America v. VERNON BONNER and MARIA MAGANA BONNER

1 This opinion has been circulated among all judges of this
court in regular active service pursuant to Circuit Rule 40(e). No
judge favored hearing the case en banc. Chief Judge Flaum
took no part in the consideration of whether to hear the case en
banc.
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-4272 & 03-1288
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
V ERNON B ONNER and M ARIA M AGANA B ONNER ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 670—George W. Lindberg, Judge.
____________
S UBMITTED F EBRUARY 6, 2006—D ECIDED M ARCH 7, 2006 1
____________
Before B AUER , C OFFEY , and M ANION , Circuit Judges.
C OFFEY , Circuit Judge. The appellants, Vernon and
Maria Magana Bonner, have filed a motion asking this
court to provide direction to the district court on a matter
of first impression in this circuit. We previously directed a
limited remand pursuant to the terms set forth in United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for the

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2 Nos. 02-4272 & 03-1288
district court to state whether it would have imposed the
same sentences had it understood in this case that the
guidelines were advisory. On remand, the original sentenc-
ing judge recused himself, and the case was reassigned to
another district court judge. The newly assigned judge after
review issued an order explaining that he cannot proceed
because he was not the sentencing judge and thus is unable
to carry out the purpose of the limited remand. The appel-
lants in turn ask this court to reverse the district court’s
ruling and order the newly assigned judge to carry out the
limited remand in light of the sentencing judge’s recusal
from the case. Rather than directing the newly assigned
judge to follow the procedure set forth in Paladino, we
believe the better approach would be to vacate the appel-
lants’ sentences and remand to the newly assigned district
judge with a clean slate for resentencing. This approach
both makes sense and is true to the spirit of Paladino and
its progeny.
I. Background
We recite only those facts necessary for this opinion
but point out that a more complete recitation of the under-
lying facts may be found in our previous unpublished order.
See United States v. Bonner, Nos. 02-4272 & 03-1288 (7th
Cir. May 20, 2005) (unpublished). Vernon and Maria
Magana Bonner were found guilty of wire fraud and theft
of government funds. Maria also was found guilty of mail
fraud and theft of educational funds. The district court
sentenced both Vernon and Maria to 78 months’ imprison-
ment, ordered them to pay restitution, barred Vernon from
receiving any future social security benefits until restitution
had been paid in full, and barred Maria from receiving any
federal benefits until restitution was paid. In our May 20,
2005, order, we vacated the restriction on their eligibility
for benefits and remanded the case to the district court for

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Nos. 02-4272 & 03-1288 3
the entry of corrected judgments. We also directed a limited
remand pursuant to Paladino, asking the district court to
indicate whether it would have sentenced the appellants
differently under the advisory guidelines. Id.
The first sentencing judge, Judge Hart, recused himself
from further proceedings on remand and recommended to
the Executive Committee for the United States District
Court for the Northern District of Illinois that the case
be reassigned to another judge. Upon reassignment, Judge
Lindberg issued a minute order explaining that it ap-
pears “that only the sentencing judge can make the deter-
mination required by Paladino, and Paladino provides no
course of action for a situation such as this.” He thus
concluded that he was unable to carry out the purpose of
the limited remand and refused to proceed. In denying the
appellants’ motion to reconsider, Judge Lindberg again
relied on the language in Paladino referring to the “sen-
tencing judge,” and he explained that whether he may
conduct proceedings on remand is an issue for this appellate
court, not him, to decide.
II. Discussion
Our review of the Bonners’ sentences imposed prior to the
Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), is for plain error only because they did not
object based on Sixth Amendment or Apprendi grounds in
the district court. See Paladino, 401 F.3d at 481. In
Paladino, our court outlined the procedure for determining
whether an error, such as a sentence imposed under a
guidelines regime that was thought to be mandatory,
constitutes a correctable plain error. Id. at 481-83. We went
on to explain that even where plain error exists, such an
error is not correctable without proof that intolerable
prejudice or a “miscarriage of justice” has occurred. Id. at
481. In order to determine whether such prejudice exists,

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4 Nos. 02-4272 & 03-1288
we are required to ascertain whether the “sentencing judge
would have given the sentence he did even if he had not
misunderstood the legal effect of the guidelines.” Id. at 482
(emphasis added). Accordingly, this court agreed on a
procedure whereby the court would order “a limited remand
to permit the sentencing judge to determine whether he
would (if required to resentence) reimpose his original
sentence.” Id. at 484 (emphasis added).
This, by its very nature, is a subjective determination.
Indeed, in Paladino we stated that the case should be
remanded to the “sentencing judge,” not just any judge who
might be available. Cf. Fed. R. Crim. P. 25(b)(1); United
States v. Soto, 48 F.3d 1415 (7th Cir. 1995). We therefore
conclude that, according to Paladino, the only person who
could really tell us whether he would have imposed the
same sentence based on the facts and evidence of a particu-
lar case is the original “sentencing judge.” In his dissent to
rehearing en banc in Paladino, Judge Ripple acknowledged
the subjective requirements of a Paladino remand when he
voiced concern over the uncertainty that would result in
cases where “retirement, disability or death has made
impossible consultation with the district judge who imposed
the unconstitutional sentence.” Paladino, 401 F.3d at 487
(Ripple, J., dissenting). The fact is that, in order for an
appellate court to determine that a “miscarriage of justice”
has not occurred, Paladino makes clear that an appellate
court must be confident that the sentencing judge would
have given the same sentence. Id. at 482. We fail to see how
this court could possibly be “confident” that the sentenc-
ing judge would have given the same sentences in this
case unless he has reassured himself after a further
proceeding and we are able to ask him.
The Second and the Ninth Circuit have addressed this
issue and reached similar conclusions, although they
employ slightly different remand procedures. See United
States v. Sanders, 421 F.3d 1044 (9th Cir. 2005); United

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Nos. 02-4272 & 03-1288 5
States v. Garcia, 413 F.3d 201 (2d Cir. 2005). Similar to the
decision we reach today, the Ninth Circuit held that a full
remand for a resentencing hearing, rather than its standard
limited remand, was appropriate in a case where the
district court judge had retired while the case was on
appeal. Sanders, 421 F.3d at 1052. The Second Circuit, in
contrast, concluded that a successor judge may conduct
proceedings on limited remand when the original sentenc-
ing judge was unavailable, reasoning that the district court
as an institution, not an individual judge, analyzes whether
a defendant’s sentence would have been the same under an
advisory guidelines system. Garcia, 413 F.3d at 226. When
the original sentencing judge is unavailable, however, the
Second Circuit requires the presence of the defendant and
requires the successor judge to consider what sentence he
or she would have imposed on behalf of the court post-
Booker rather than try to speculate what the original
sentencing judge would do. Id. at 228-30; cf. Fed. R. Crim.
P. 43(b)(3). These qualifications led the Ninth Circuit to
observe that there is no substantive difference between the
procedures adopted by the two circuits. “Whether the new
district judge is imposing a new sentence in a full
resentencing hearing, or determining in a Garcia modified
limited remand whether he or she would have imposed a
materially different sentence than that imposed by the
original judge, a full review of the record is required.
Further, in both cases the defendant must be produced and
given an opportunity to be heard.” Sanders, 421 F.3d at
1052.
Vacating the appellants’ sentences and remanding for a
new sentencing hearing allows the newly assigned judge
to proceed with a clean slate. Unlike the typical case
contemplated in Paladino, we cannot simply ask the
sentencing judge whether he would have given a differ-
ent sentence and “thus dispel[ ] the epistemic fog.”
Paladino, 401 F.3d at 484. Accordingly, we see no pur-

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6 Nos. 02-4272 & 03-1288
pose in restricting a newly assigned judge to comparing the
sentence he would impose post-Booker, armed with the
knowledge that the guidelines are advisory, to the sentence
initially imposed by a different judge operating under the
assumption that the guidelines were mandatory. Instead of
being constrained by the proceedings conducted before the
original sentencing judge, the successor sentencing judge
will now be able to consider the entire record, consider
additional evidence, including witness testimony, hear from
the defendant if he or she desires, and hear arguments from
the defense and prosecution alike. “In the post-Booker
world, sentencing judges have discretion to weigh a multi-
tude of factors that were not ordinarily relevant or appro-
priate to consider under the previous regime.” 401 F.3d at
487-88 (Kanne, J., dissenting) (citing the example of specific
offender characteristics set forth U.S.S.G. § 5H1 such as
age, family ties and responsibilities, and employment
record). Also, unlike a limited Paladino remand, the
defendant will have an absolute right to be present during
the hearing. See Fed. R. Crim. P. 43(a)(3). The new sentenc-
ing judge will start with a blank page and there is nothing
to preclude him from imposing the same sentence, a lighter
sentence or a harsher sentence as long as the sentence
imposed is reasonable and the 18 U.S.C. § 3553(a) factors
are considered. See, e.g., United States v. Newsom, 428 F.3d
685, 686-87 (7th Cir. 2005), cert. denied, 2006 WL 271816
(2006); Paladino, 401 F.3d at 484.
The procedure we establish today is applicable when-
ever the original sentencing judge is unavailable to carry
out a remand from this court in accordance with the terms
set forth in Paladino, regardless of whether the judge is
unavailable due to recusal, retirement, absence, death,
sickness or other disability. If the sentencing judge becomes
unavailable following a limited remand under Paladino, the
successor judge should notify this court of the unavailability
of the original sentencing judge. This court, in these

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Nos. 02-4272 & 03-1288 7
unusual and rare circumstances, will then vacate the
defendant’s sentence and remand for a complete resen-
tencing hearing in order to permit the successor judge to
sentence the defendant in conformity with the mandates
of Booker.
Accordingly, I T I S O RDERED that the appellants’ motion
to direct the district court to carry out a limited remand
under Paladino is D ENIED . The appellants’ sentences
are V ACATED , and their cases are R EMANDED to the dis-
trict court for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-7-06

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