03-3031 U.S. v. Townsend

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“In Booker, the Supreme Court invalidated the mandatory application of the Guidelines, holding that district courts are obligated to consider the Guidelines but are not bound by them. Id. at 767. That decision applies to all cases pending on direct review, and accordingly it was error for the district court to treat the Guidelines as binding. Because the issue was not raised below, Townsend must establish not only error, but plain error, in order to obtain relief, which requires a showing that the error in treating the Guidelines as mandatory affected his substantial rights. United States v. Williams, 410 F.3d 397, 403-04 (7th Cir. 2005). The record does not reveal whether the district court might have sentenced him to a lesser sentence had it known of the advisory nature of the Guidelines, and therefore whether the error was one affecting his substantial rights. See United States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005). In accordance with Booker, we must remand the case to the district court for that determination. If the district court indicates that it would be inclined to impose a lesser sentence, then Townsend will have demonstrated plain error, and we will vacate the sentence and remand for resentencing. Williams, 410 F.3d at 404; Paladino, 401 F.3d at 484. On the other hand, if the district court determines that it would not be inclined to impose a lower sentence given the advisory nature of the Guidelines, we will consider only whether the sentence was plainly erroneous in the sense of being unreasonable. Williams, 410 F.3d at 404; Paladino, 401 F.3d at 484.”

Affirmed and Remanded.

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Rovner, J.