United States of America v. Ulice Askew

* Although originally released as an unpublished order on
July 20, 2005, the panel has determined that this decision should
issue as a published opinion. See Circuit Rule 53 (d)(1).
** Judge Ripple was on the original panel but due to changed cir-
cumstances, he decided to recuse himself from any further action
in this case.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2574
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
U LICE A SKEW ,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CR 37—Elaine E. Bucklo, Judge.
____________
D ECIDED J ULY 20, 2005—O PINION P UBLISHED A UGUST 1, 2005 *
____________
Before B AUER , K ANNE , and R OVNER , Circuit Judges. **
P ER C URIAM . On April 5, 2005, we ordered a limited
remand pursuant to United States v. Paladino, 401 F.3d
471 (7th Cir. 2005), so that we could determine whether the

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2 No. 03-2574
district court would have imposed the same sentence had
the United States Sentencing Guidelines been merely
advisory at the time that Askew was sentenced. See
United States v. Booker, 125 S. Ct. 738 (2005).
On June 29, 2005, the district court responded as follows:
I am unable at this time to say that I would have
imposed the same sentence if I had known the Sentenc-
ing Guidelines were merely advisory. I therefore desire
to resentence the defendant.
On July 6, 2005, the government indicated that it opposes
any resentencing of Askew. (7/06/2005 Gov’t Opp. to
Resentencing.) The government contends that Askew has
not met his burden of showing plain error and thus is not
entitled to be resentenced. The government interprets the
district court as expressing only a present desire to
resentence Askew, because the judge was “unable at this
time to say” whether she would have imposed the same sen-
tence. (Id. (“The operative time to consider whether plain
error was committed is not the present, that is the district
court’s current feelings about the sentence, but whether
when initially sentencing Askew, the district judge would
have been inclined to sentence him to a lesser term had she
know [sic] the guidelines were merely advisory.”) (emphasis
in original).)
The government takes an unduly narrow view of the
district judge’s response and the purpose of our limited
remand. In Paladino, we stated that “[i]f . . . the judge
states on limited remand that he would have imposed a dif-
ferent sentence had he known the guidelines were merely
advisory, we will vacate the original sentence and remand
for resentencing.” 401 F.3d at 484. True, the district judge’s
response uses wording that does not precisely mirror the
language quoted. But the judge’s words respond to and
track other language in Paladino indicating that “if the
judge would have imposed the same sentence even if he had

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No. 03-2574 3
thought the guidelines merely advisory . . . there is no
prejudice to the defendant.” Id. at 483. The judge certainly
did not say that she would have imposed the same sentence.
In fact, the judge unambiguously expressed her desire to
resentence Askew. See id. at 484.
The important point here is that we interpret the district
judge’s response as an affirmative answer to our question
whether plain error occurred in Askew’s case. Paladino does
not require any particular “magic words” to that effect, only
that the district judge indicate whether she would have
imposed a different sentence under an advisory Guideline
scheme. In our view, the district judge’s response adequately
expresses that she would have done just that.
Accordingly, we V ACATE Askew’s original sentence and
R EMAND this matter to the district court for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-05

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