                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                                  August 4, 2005

                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge


Nos. 03-4123 & 04-2358

UNITED STATES OF AMERICA,                    Appeals from the United States
    Plaintiff-Appellee,                      District Court for the Northern
                                             District of Illinois, Eastern Division
      v.
                                             Nos. 02 CR 1131 & 03 CR 496-1
BYRON V. SUTTON,
    Defendant-Appellant.                     Elaine E. Bucklo,
                                             Judge.


                                    ORDER

       Byron Sutton pleaded guilty to crack conspiracy and distribution charges, and
in a prior opinion we rejected his arguments that the district court miscalculated
the drug quantity and imposed an illegal restitution award. United States v.
Sutton, 406 F.3d 472 (7th Cir. 2005). We nonetheless issued a limited remand
because as we now know from United States v. Booker, 125 S.Ct. 738 (2005), the
district court sentenced Sutton in violation of the Sixth Amendment and, despite
being limited to plain-error review given that Sutton failed to timely object to the
sentencing procedures, we were unable to say “whether Sutton’s substantial rights
were affected without consulting the sentencing judge to determine whether she
would have given the same sentence had she known the guidelines were not
Nos. 03-4123 & 04-2358                                                       Page 2


mandatory,” Sutton, 406 F.3d at 475. We retained jurisdiction during the limited
remand.

       In response to our limited remand, the district judge informed us that she
cannot represent that she “would have imposed the same sentence” had she known
the sentencing guidelines were not binding. Both parties have filed memoranda
commenting on the district court’s position, and although the government argues
otherwise, we agree with Sutton that, taken in context, the court’s statement is an
expression of intent to impose a lower sentence given the additional discretion
afforded by Booker. Accordingly, we conclude that the concurrent 135-month terms
imposed by the district court constitute plain error. Johnson v. United States, 520
U.S. 461, 466-67 (1997).

       Sutton’s sentences are VACATED, and his cases are REMANDED to the
district court for resentencing.
