                                   In the

       United States Court of Appeals
                    For the Seventh Circuit
                         ____________________
No. 03-4239
United States of America,
                                                     Plaintiff-Appellee,
                                     v.
Marcus Lee,
                                                 Defendant-Appellant.
                         ____________________
            Appeal from the United States District Court for the
              Northern District of Illinois, Eastern Division.
                No. 03 CR 478 — Ruben Castillo, Judge.
                         ____________________

Argued February 16, 2005 — Decided February 25, 2005*
               ____________________

   Before Easterbrook, Wood, and Sykes, Circuit Judges.
    Easterbrook, Circuit Judge. A jury convicted Marcus Lee
of possessing a firearm despite a previous felony conviction.
18 U.S.C. §922(g)(1). His sentence was 120 months’ impris-
onment; the judge expressed frustration at his inability to
impose a higher one, which the statutory maximum forbade.
Lee challenges the conviction on the ground that the officer
who made the arrest did not find the gun, which was buried
deep in a pocket of his cargo pants. Still, the gun was found,
and uncertainty about just which officer found it and when

   *   The opinion is being released in typescript. A printed copy will fol-
low.
No. 03-4239                                              Page 2


does not preclude a reasonable jury from finding guilt be-
yond a reasonable doubt.
   Nor does it matter that the local jail gave the cargo pants
to charity after Lee failed to claim them. He says that the
prosecutor’s inability to produce the pants at trial was a
“Brady violation,” which is nonsense. Brady v. Maryland,
373 U.S. 83 (1963), deals with the concealment of exculpatory
evidence unknown to the defendant. Lee was aware of his
own pants. Recast as a complaint about spoliation of evi-
dence, it fares no better. Destruction (or donation) of evi-
dence raises problems only when the evidence was made
scarce in order to undermine a valid defense. See Illinois v.
Fisher, 540 U.S. 544 (2004); Arizona v. Youngblood, 488 U.S.
51 (1988). No such purpose has been alleged or is plausible.
None of Lee’s other complaints about the conduct of trial
requires discussion.
    Because the sentence is at the statutory maximum, and
the range under the Sentencing Guidelines is higher (the
judge calculated 168 to 210 months), Lee does not contend
that his sentence is improper under the Guidelines or any
federal statute. But he does contend, relying on United
States v. Booker, 125 S. Ct. 738 (2005), that the district judge
violated the sixth amendment when making the findings that
established the presumptive sentence. The 168 to 210 month
range depended not only on the events that the jury neces-
sarily found beyond a reasonable doubt, plus Lee’s older
convictions (which need not be passed on by another jury,
see Almendarez-Torres v. United States, 523 U.S. 224 (1998)),
but also the district judge’s conclusions (on the preponder-
ance standard) that Lee had obstructed justice by commit-
ting perjury at a pretrial suppression hearing, and that he
had possessed the gun while committing two additional of-
fenses (purchasing drugs and wearing body armor, which
felons cannot do). Lee did not make any sixth amendment
argument in the district court, however, so our review is for
plain error. Booker, 125 S. Ct. at 769; Fed. R. Crim. P. 52(b).
    In order to show plain error the defendant must estab-
lish, among other things, that the error “affected substantial
rights”—which is to say that it made the defendant worse off.
No. 03-4239                                              Page 3


See, e.g., United States v. Olano, 507 U.S. 725, 734–37 (1993);
Johnson v. United States, 520 U.S. 461, 468–69 (1997); Jones v.
United States, 527 U.S. 373, 394–95 (1999); United States v.
Cotton, 535 U.S. 625, 631–33 (2002); United States v. Domin-
guez Benitez, 124 S. Ct. 2333, 2339–40 (2004). As our opinion
in United States v. Paladino, No. 03-2296 (7th Cir. Feb. 25,
2005), also issued today, explains, ascertaining prejudice can
be difficult after Booker, for the upshot of that decision is to
increase district judges’ sentencing discretion rather than re-
allocate any issue from judge to jury, change the burden of
persuasion, or limit sentences to those that can be supported
solely by the facts found by the jury. How can an appellate
court know what effect extra leeway would have had, when
the district court did not recognize that it had any? To avoid
aimless speculation, we hold in Paladino, uncertainty should
be resolved by asking the district judge.
    As Paladino itself shows, however, a remand is necessary
only when uncertainty otherwise would leave this court in a
fog about what the district judge would have done with addi-
tional discretion. See also United States v. Stockheimer, 157
F.3d 1082, 1091–92 (7th Cir. 1998). One of the defendants in
Paladino received a sentence at the statutory minimum.
Nothing in Booker gives a judge any discretion to disregard a
mandatory minimum, so there was no need to speculate
about prejudice. We affirmed that sentence instead of re-
manding to obtain the district judge’s views.
   Other circumstances likewise may intimate that a district
court’s mistaken belief about the extent of its discretion to
reduce the penalty did not work to a defendant’s disadvan-
tage, and therefore could not have undercut the defendant’s
substantial rights. One is when the district court states on the
record that, if it had more leeway, it would have imposed a
higher sentence. A second is when the court departs down-
ward from the Guidelines, imposing a sentence below the
calculated range. Such a departure may imply that the
Guidelines were not a constraint in the particular case and
could suggest that there may have been no constitutional er-
ror: The ultimate sentence may rest on an exercise of discre-
No. 03-4239                                               Page 4


tion rather than on facts, found by the judge, that established
the prescribed range.
   A third circumstance is an upward departure from a
properly calculated range. Upward departure is just a special
case of the first circumstance: By moving up, the judge
evinces not only a belief that discretion exists but also a dis-
position to exercise it adversely to the accused. Such a judge,
knowing that Booker affords yet more latitude, might impose
a sentence higher still; knowledge that freedom has in-
creased would not induce the judge to reduce the sentence.
Perhaps the imposition of sentence at the top of a properly
calculated range also implies lack of potential effect, but we
need not pursue that possibility.
    The circumstances we have described are indicators
rather than assurances. Sometimes district judges depart by
reference to the Guideline range. For example, a judge may
say or imply something like: “your crime and background
are 10% less serious than the norm, so I am departing by two
levels from the Guideline range.” Such a connection, ex-
pressed or inferred from other events, would suggest that
additional leeway might have affected the sentence and
would justify a remand under Paladino to learn the district
court’s disposition. Linkage could occur as well when the
number of levels by which to depart may have been con-
strained by pre-Booker law.
    For many downward departures, though, the original
range does not constrain the sentence: departures under the
safety valve legislation, or on the prosecutor’s motion to re-
ward substantial assistance, often produce penalties that are
the result of discretion unfettered by factual findings adverse
to the accused. Similarly for some upward departures a
mandatory range determined by factual findings may not
have worked to the accused’s detriment, but the possibility
cannot be excluded in all cases. That’s why Booker called on
the appellate courts to apply the plain error rule one case at
a time rather than to treat all alike, and why it is important to
ask the district judge’s opinion in accordance with the pro-
cedure outlined in Paladino. But it is worthwhile to pay at-
tention to these indicators along the way.
No. 03-4239                                                        Page 5


    Two of these three circumstances are present in Lee’s
case. The district judge expressed a strong preference to give
a higher sentence if he could do so. And the actual sentence
was well below the Guideline range (which had been prop-
erly calculated). It was set, not by a percentage or level-
based discount, but by the statutory maximum. Thus we can
be confident that none of Lee’s substantial rights was ad-
versely affected by the district judge’s application of pre-
Booker law. Plain error has not been established, and the
judgment is
                                                             affirmed.†




     † This opinion was circulated before release to all active judges. See
Circuit Rule 40(e). A majority did not favor a hearing en banc. Circuit
Judges Ripple and Kanne voted to rehear the case en banc for the reasons
stated in their dissents from the denial of rehearing en banc in Paladino.
