                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53


            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                               Submitted July 21, 2006
                               Decided August 1, 2006

                                         Before

                           Hon. Joel M. Flaum, Chief Judge

                           Hon. Daniel A. Manion, Circuit Judge

                           Hon. Terence T. Evans, Circuit Judge

No. 03-3113

United States of America,                         Appeal from the United States District
                   Plaintiff-Appellee,            Court for the Northern District
                                                  of Illinois, Eastern Division
      v.
                                                  No. 99 CR 559
Ruben Arroyo,
                Defendant-Appellant.              Wayne R. Andersen,
                                                  Judge.

                                      ORDER

       Defendant-appellant Ruben Arroyo was convicted by jury of possession with
intent to distribute heroin and conspiracy to possess with intent to distribute heroin
in violation of 21 U.S.C. §§ 841 and 846. At Arroyo’s sentencing hearing, the
government presented evidence that Arroyo had also distributed large quantities of
cocaine. The district court considered both the heroin and cocaine transactions in
applying the federal sentencing guidelines, and arrived at a sentence of 360 months’
imprisonment and five years of supervised release. Arroyo appealed his conviction and
sentence. In United States v. Arroyo, 406 F.3d 881 (7th Cir. 2005), we affirmed
Arroyo’s conviction, but ordered a limited remand pursuant to the procedures set forth
in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to permit the district court
to determine if it would have imposed the same sentence had it known at the time of
sentencing that the guidelines were advisory.
No. 03-3113                                                                      Page 2

       On remand, the district court determined that it likely would not impose the
same sentence under an advisory guidelines regime. Instead, the district court
“probably would impose a sentence that is modestly under the guideline range.” The
district court properly noted that, pursuant to 18 U.S.C. § 3553(a), a sentence should
be “‘sufficient but not greater than necessary,’ taking into account the circumstances
of the offense, the history and characteristics of the defendant, and the need for the
sentence imposed to reflect the seriousness of the offense, to afford adequate deterrence
to criminal conduct and to protect the public from further crimes by the defendant.”
The district court determined that, given the defendant’s age of 42 years old and his
criminal history, there is a “greatly reduced” chance that defendant would engage in
further criminal activity upon release from prison. The district court also concluded
that a modestly reduced sentence would adequately reflect the seriousness of the crime
and provide deterrence to criminal activity.

       In response to the district court’s order on remand, the government filed a
position statement indicating that it does not object to a full remand for a new
sentencing proceeding. Accordingly, we VACATE Arroyo’s original sentence and
REMAND this matter to the district court for resentencing.
