Chicago, Illinois 60604 July 1, 2005 Before HON. TERENCE T. EVANS, Circuit Judge… v. No. 01 CR 140 Michael Imperl

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 1, 2005
Before
HON. TERENCE T. EVANS, Circuit Judge
HON. ANN CLAIRE WILLIAMS, Circuit Judge
HON. DIANE S. SYKES, Circuit Judge
No. 02-4146
United States of America, Appeal from the United States
Plaintiff-Appellee, District Court for the Eastern District
of Wisconsin.
v.
No. 01 CR 140
Michael Imperl,
Defendant-Appellant. Lynn Adelman,
Judge.
O R D E R
After concluding that the district court had correctly calculated the applicable
range under the United States Sentencing Guidelines, we ordered a limited remand
so that the district court could determine whether Michael Imperl’s sentence
remains appropriate now that United States v. Booker, 125 S. Ct. 738 (2005), has
relegated the United States Sentencing Guidelines to advisory status. See United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
The district court judge has replied that he would impose the same sentence
today knowing that the Guidelines are not mandatory. Therefore, “we will affirm
the original sentence against [Imperl’s] plain error challenge provided the sentence
is reasonable, the standard of review prescribed by Booker, 125 S. Ct. at 765.”
Paladino, 401 F.3d at 484.
On June 13, 2005, we invited the parties to file, within seven days, any
arguments concerning the appropriate disposition of the appeal in light of the
district court’s decision. We have received each party’s submission.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 02-4146 Page 2
Imperl contends again that his sentence was improper under Booker because
the findings of fact upon which sentences are imposed must be found by juries, not
judges, and that his sentence was reimposed largely based upon judge-found facts.
He asks that we vacate his sentence and remand for resentencing. Imperl’s
argument has no merit. Booker recognized that the Sixth Amendment is violated
when a sentencing judge imposes an enhanced sentence under the United States
Sentencing Guidelines based on a sentencing judge’s determination of a fact (other
than a fact of prior conviction) neither found by a jury nor admitted by the
defendant. See Booker, 125 S. Ct. at 756. The remedy for such a violation lies not
in a new trial or a resentencing based on only jury-found or defendant-admitted
facts, however. Rather, the Supreme Court held that excision of two provisions of
the Sentencing Reform Act, 18 U.S.C. § § 3553(b)(1) and 3742(e), thereby making
the Guidelines advisory, constituted the proper remedy. Id. at 756-57.
The Guidelines sentencing range applicable here is 46 to 57 months.
Imperl’s 46 month sentence lies at the low end of this range. On remand, the
district court judge provided a thorough, nine-page memorandum detailing why he
believed a 46 month sentence was still appropriate even with the knowledge that
the Guidelines are only advisory. We have considered the defendant’s
circumstances and the district court’s reasoning, and we do not believe the 46
month sentence should be deemed “unreasonable.” Accordingly, the judgment of the
district court is AFFIRMED.

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