Where it cannot be determined whether the district court would have imposed a lower sentence it knew the FSA applied, remand is appropriate.
“The government concedes that Maxwell is subject to a lower Guidelines range, but maintains that he has not established plain error because he has failed to prove that the district court would have imposed a lower sentence had it known the FSA applied. In other similar cases where we could not be certain whether the district court would imposed a different sentence, we have ordered a limited remand under the procedure outlined in United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005) (explaining the procedure involves ‘retaining jurisdiction of the appeal, [while] order[ing] a
limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence’). See, e.g., United States v. Billian, 600 F.3d 791, 795 (7th Cir. 2010); Taylor, 520 F.3d at 748. We believe that is the appropriate procedure here as well because the district court gave no indication that it would have imposed the same sentence regardless of the FSA’s application. In sentencing Maxwell to 144 months, the court noted that it ‘could have justified going to a much higher sentence,’ but also found ‘some justification for a sentence below the guideline range’ and stated that it was ‘unwilling to give up on this defendant.’ While it is possible that Maxwell’s sentence would have been the same even if the court had applied the FSA, there is also reason to think it would have been lower, so we order a limited Paladino remand so that the district court may inform us whether it wants to resentence the defendant. If the district court states that it would reimpose the original sentence, then we will affirm Maxwell’s sentence if it is reasonable. Paladino, 401 F.3d at 484. If, instead, the district court states that it would have imposed a different sentence had it known the FSA applied, then we will vacate the original sentence and remand for resentencing. Id. This court will accordingly retain jurisdiction until it has received the district court’s response.”
12-1809 U.S. v. Maxwell
Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Williams, J.