United States of America v. Lorenzo Davila-Rodriguez

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 13, 2005*
Decided September 21, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1498
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORENZO DAVILA-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United
States District Court for the
Southern District of Illinois.
No. 3:02CR30081-003
G. Patrick Murphy, Chief
Judge.
Order
Lorenzo Davila-Rodriguez pleaded guilty to conspiring to distribute cocaine. 21
U.S.C. §§ 841(a)(1), 846. At sentencing, the district judge declined to resolve objec-
tions that Davila-Rodriguez had made to statements in the presentence report con-
cerning the quantity of cocaine for which he is accountable, the role he played in the
organization, and other matters (such as whether he had solicited a murder). Con-
cluding that United States v. Booker, 125 S. Ct. 738 (2005), made it unnecessary to
decide what Davila-Rodriguez had done, the district judge pronounced a sentence of
262 months’ imprisonment while leaving these subjects up in the air—yet without
announcing that they had played no role in the sentence.
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).

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No. 05-1498 Page 2
The United States sensibly has confessed error. Nothing in Booker affects the
requirement, established by Fed. R. Crim. P. 32(i)(3)(B), that before imposing sen-
tence the court either resolve every factual dispute or state on the record that the
disputed subject plays no role in the sentence. Factual issues such as those that
Davila-Rodriguez contested remain relevant to sentencing after Booker. A district
judge must “first calculate the correct guideline sentence so that [it] can serve as a
meaningful guide in the district court’s imposition of a final sentence.” United
States v. Baretz, 411 F.3d 867, 877 (7th Cir. 2005). The Guidelines range remains
the starting point, even though Booker augments the court’s discretion to give sen-
tences outside that range. See United States v. Dean, 414 F.3d 725 (7th Cir. 2005);
United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
Davila-Rodriguez contends that the district judge is forbidden to receive evi-
dence on remand in order to resolve the disputes “in that no mechanism currently
allows for such to occur.” This assertion is puzzling, as the “mechanism” is the same
one that allows for the receipt and consideration of evidence at any sentencing.
When sentencing Davila-Rodriguez on remand, the district court may use all the
procedures that it could and should have used the first time. See United States v.
Goldberg, 406 F.3d 891, 894–95 (7th Cir. 2005). Other contentions need not be re-
solved now, as the issues may not recur in resentencing.
VACATED AND REMANDED FOR RESENTENCING

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