                            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’ imprisonment; 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 does not preclude a reasonable
jury from finding guilt beyond a reasonable doubt.
  Nor does it matter that the local jail gave the cargo pants
2                                                No. 03-4239

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 exculpa-
tory evidence unknown to the defendant. Lee was aware of
his own pants. Recast as a complaint about spoliation of
evidence, 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 find-
ings that established the presumptive sentence. The 168 to
210 month range depended not only on the events that the
jury necessarily 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 preponderance standard) that Lee had obstructed
justice by committing perjury at a pretrial suppression
hearing, and that he had possessed the gun while commit-
ting two additional offenses (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 establish,
among other things, that the error “affected substantial
rights”—which is to say that it made the defendant worse
No. 03-4239                                                 3

off. 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. Dominguez 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’ sen-
tencing discretion rather than reallocate 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 specula-
tion, 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
additional discretion. See also United States v. Stockheimer,
157 F.3d 1082, 1091-92 (7th Cir. 1998). One of the defen-
dants in Paladino received a sentence at the statutory min-
imum. 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 in-
stead of remanding 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 im-
posed a higher sentence. A second is when the court departs
downward from the Guidelines, imposing a sentence below
the calculated range. Such a departure may imply that the
4                                              No. 03-4239

Guidelines were not a constraint in the particular case and
could suggest that there may have been no constitutional
error: The ultimate sentence may rest on an exercise of
discretion rather than on facts, found by the judge, that
established the prescribed range.
  A third circumstance is an upward departure from a prop-
erly 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
disposition 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
increased would not induce the judge to reduce the sen-
tence. Perhaps the imposition of sentence at the top of a
properly calculated range also implies lack of potential ef-
fect, 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 back-
ground are 10% less serious than the norm, so I am departing
by two levels from the Guideline range.” Such a connection,
expressed 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
reward substantial assistance, often produce penalties that
are the result of discretion unfettered by factual findings
adverse to the accused. Similarly for some upward depar-
tures a mandatory range determined by factual findings
No. 03-4239                                                      5

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 procedure outlined in Paladino. But
it is worthwhile to pay attention to these indicators along
the way.
  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 properly 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 adversely affected by the district judge’s application of
pre-Booker law. Plain error has not been established, and
the judgment is
                                                                  †
                                                      AFFIRMED.

A true Copy:
       Teste:
                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




†
  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 hear the case en banc
for the reasons stated in their dissents from the denial of hearing
en banc in Paladino.


                      USCA-02-C-0072—3-4-05
