                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 04-2662
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

TEK NGO,
                                      Defendant-Appellant.

                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
       No. 03-CR-110-C—Barbara B. Crabb, Chief Judge.
                       ____________
      ARGUED MARCH 29, 2005—DECIDED MAY 3, 2005
                    ____________




 Before CUDAHY, WOOD and SYKES, Circuit Judges.
  CUDAHY, Circuit Judge. Tek Ngo appeals his sentence of
210 months on the ground that the district court violated
the Sixth Amendment by sentencing him as a career
offender without presenting the facts underlying his prior
convictions to a jury. He also argues, and the government
concedes, that in light of the Supreme Court’s decision in
United States v. Booker, 125 S.Ct. 738 (2005), the district
court erred in applying the guidelines under the prior
mandatory sentencing scheme. Because the district court
engaged in factfinding beyond what is permitted under the
2                                               No. 04-2662

exception for “the fact of a prior conviction,” we remand the
case pursuant to United States v. Paladino, 401 F.3d 471,
484 (7th Cir. 2005), for the limited purpose of determining
whether the district court’s choice of sentence would have
been different had it known that the application of the
sentencing guidelines was not mandatory.


                     I. Background
  In April 2004 a jury found Ngo guilty of conspiracy to dis-
tribute and to possess with intent to distribute meth-
amphetamine, 21 U.S.C. §§ 846, 841(a)(1), and distributing
methamphetamine, id. § 841(a)(1). The presentence inves-
tigation report (PSR), prepared using the November 2003
guidelines, recommended a base offense level of 32 based on
the quantity of drugs encompassed by Ngo’s relevant conduct.
See U.S.S.G. § 2D1.1(c)(4). The PSR further recommended
that Ngo be sentenced as a career offender under U.S.S.G.
§ 4B1.1, based upon two prior convictions for armed robbery.
  Ngo filed several written objections to the PSR. He first
argued that he was not a career offender because his two
armed robbery convictions were “related” and thus counted
as just one prior conviction instead of the two needed to
trigger the career offender guideline. See U.S.S.G.
§ 4A1.2(a)(2) (“Prior sentences imposed in unrelated cases
are to be counted separately. Prior sentences imposed in
related cases are to be treated as one sentence.”); id., cmt.
n.3 (defining “related” cases); see also U.S.S.G. § 4B1.2(c)
(“prior convictions” under § 4B1.2 include only those counted
separately under § 4A1.1 and § 4A1.2). Next he argued that
his criminal history category was III, not IV, if the career
offender guideline did not apply. Ngo also objected to the
drug quantity calculation in the PSR on the ground that it
was based on information from unreliable sources. He did
not advance any argument based on the Sixth Amendment
or Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 04-2662                                                3

  At sentencing on June 23, 2004, the district court rejected
the recommendation in the PSR and calculated a drug
quantity that yielded a base offense level of 28 under
§ 2D1.1(c)(4). But this conclusion ultimately did not factor
into Ngo’s sentence because the court found that Ngo’s prior
armed robbery convictions were not consolidated for
sentencing or part of a common scheme or plan and thus
sentenced him as a career offender. As a career offender,
Ngo’s total offense level was 32 and his criminal history
category a VI, see U.S.S.G. § 4B1.1, resulting in a guideline
range of 210 to 240 months. The court sentenced Ngo to 210
months’ imprisonment, three years of supervised release,
and $200 in criminal assessments. The court noted that a
sentence at the bottom of the guideline range was “suffi-
cient to hold defendant accountable for his criminal actions
and to protect the community.”
  In his opening appellate brief, Ngo argued that under
Blakely v. Washington, 124 S.Ct. 2531 (2004), and United
States v. Booker, 375 F.3d 508 (7th Cir. 2004), his sentence
violates the Sixth Amendment because the district court
made factual findings by a preponderance of the evidence
that increased his guideline range. The parties then filed
supplemental briefs after the Supreme Court decided Booker.
In his supplemental brief, Ngo argues that his sentence
violates the Sixth Amendment because the district court’s
determination that his prior convictions are “unrelated,” see
U.S.S.G. § 4A.1.2, cmt. n.3, encompassed more than the
“fact of a prior conviction” and thus exceeded the judicial
factfinding exception for recidivism recognized in
Almendarez-Torres v. United States, 523 U.S. 224 (1998),
and preserved in Apprendi, 530 U.S. at 489-90. Ngo argues
that even absent a Sixth Amendment violation he must be
resentenced in light of the remedial opinion in Booker. The
government maintains that Ngo’s Sixth Amendment rights
were not violated by the application of the career offender
guideline but concedes that his sentence is erroneous under
4                                                No. 04-2662

Booker because the guidelines are no longer mandatory.
The government urges this court to review for plain error,
but Ngo challenges the contention that he forfeited his
Booker argument and seeks plenary review of his sentence.
He argues in the alternative that resentencing is required
because his sentence was plainly erroneous.


                        II. Analysis
  Before the Supreme Court’s recent decision in Shepard v.
United States, 125 S.Ct. 1254 (2005), Ngo’s
Sixth Amendment argument would have lacked merit.
Neither the Supreme Court’s decision in Blakely nor this
court’s opinion in Booker disturbed the principle that the
“fact of a prior conviction” falls outside the Apprendi rule
that facts increasing a sentence beyond the otherwise-ap-
plicable statutory maximum must be proved to a jury beyond
a reasonable doubt. See United States v. Pittman, 388 F.3d
1104, 1109 (7th Cir. 2004). Accordingly, in Pittman we held
that applying § 4B1.1 did not violate Blakely as interpreted
by this court in Booker where the district court found by a
preponderance of the evidence that the defendant was at
least 18 years old at the time of his offense and that he had
two prior convictions for drug trafficking. Id. In Booker, the
Court again preserved the Almendarez-Torres exception for
“the fact of a prior conviction.” Booker, 125 S.Ct. at 758; see
Paladino, 401 F.3d at 480; United States v. Barnett, 398 F.3d
516, 525 (6th Cir. 2005); United States v. Shelton, 400 F.3d
1325, 1329 (11th Cir. 2005).
  Ngo argues that the district court’s conclusion that he is
a career offender entailed finding facts beyond the “fact of
a prior conviction,” namely, that his prior convictions were
not consolidated for sentencing or part of a common scheme
or plan. This court rejected a similar argument in United
States v. Morris, 292 F.3d 1010 (7th Cir. 2002). In Morris,
a defendant who was sentenced under the Armed Career
No. 04-2662                                                5

Criminal Act (ACCA), 18 U.S.C. § 924(e), argued that his
sentence was unconstitutional under Apprendi because the
government did not prove beyond a reasonable doubt that
his prior convictions had been committed on separate
occasions as required by the statute. See 18 U.S.C.
§ 924(e)(1). This court rejected the argument, noting that
there was no precedent for “parsing out the recidivism
inquiry.” Id. at 1012.
  Recently, however, the Supreme Court suggested that it
may indeed be appropriate to “parse out” the recidivism
inquiry, at least under the ACCA. See Shepard, 125 S.Ct. at
1257. In Shepard the question before the Court was
whether a sentencing court can look to police reports or
complaint applications to determine whether a prior guilty
plea necessarily admitted a “generic” burglary (burglary of
a building or structure) for the purposes of sentencing
under the ACCA. Id. The Court declined to extend the scope
of evidence that a judge already could consider under
Taylor v. United States, 495 U.S. 575, 602 (1990), and held
that a sentencing court is limited to examining the statute
of conviction, charging document, plea agreement, plea
transcript, and “any explicit factual finding by the trial
judge to which the defendant assented.” Id.
  The Almendarez-Torres exception for prior convictions
still stands after Shepard but the Court signaled that the
purview of the exception is quite narrow. A plurality of the
Court concluded that the disputed fact in Shepard—
whether a prior conviction was for “generic” burglary—was
“too removed from the conclusive significance of a prior
judicial record . . . to say that Almendarez-Torres clearly
authorizes a judge to resolve the dispute.” Id. at 1262. This
language suggests that the recidivism exception exempts
only those findings traceable to a prior judicial record of
“conclusive significance.” Otherwise, Sixth Amendment con-
cerns arise.
6                                                No. 04-2662

  The government does not contest that the district court
made factual findings in Ngo’s case. Indeed, we have held
that “whether a case has been ‘consolidated’ for trial or sen-
tencing is a matter of fact.” United States v. Burford, 201
F.3d 937, 942 (7th Cir. 2000). Likewise, we have suggested
that whether prior crimes are part of a common scheme is
also a fact question. United States v. Brown, 209 F.3d 1020,
1023 (7th Cir. 2000) (the “determination that certain prior
sentences are not related is a factual one”). Even after
Booker, however, we have not scrutinized factual findings
of this sort because they have been assumed to fall within
the Almendarez-Torres exception, and the government’s
position is that the sentencing judge is still privileged to
make such findings. But after Shepard, the question arises
whether the district court exceeded the scope of the prior
conviction exception by deciding these facts on its own.
  The finding that Ngo’s crimes were not consolidated falls
within the narrow parameters permitted by Shepard, i.e.,
those findings that can be made by resorting only to infor-
mation with the “conclusive significance” of a prior judicial
record. We have held that a sentencing judge may not con-
clude that consolidation occurred unless there is a formal
order of consolidation or “a showing on the record of the sen-
tencing hearing that the sentencing judge considered the
cases sufficiently related.” United States v. Best, 250 F.3d
1084, 1095 (7th Cir. 2001) (citation omitted and emphasis
added). Our precedent accordingly requires that a district
court decide a disputed consolidation question by resorting
to a formal order or a sentencing transcript, both sources
that presumably have “the conclusive significance of a prior
judicial record” as required by Shepard. No
Sixth Amendment problem results because a district court
must effectively conclude that prior cases are not consoli-
dated unless the defendant produces the kind of evidence
that could be considered under Shepard.
    However, a similar analysis does not apply with regard to
No. 04-2662                                                        7

the district court’s finding that Ngo’s crimes were not part of
a common scheme or plan. Crimes are considered part of
joint scheme when they were jointly planned or when one
crime necessarily entails the commission of the other. Id.;
United States v. Joy, 192 F.3d 761, 771 (7th Cir. 1999). In
Ngo’s case, the district court looked to the fact that the
robberies were committed 10 days apart in deciding that
they were not jointly planned, concluding that the elapsed
time between the crimes outweighed the fact that the crimes
were “committed the same way.” The court also relied on
the “different nature of the commercial establishments”
that Ngo burglarized. This latter finding—the type of es-
tablishment that was burglarized—is nearly identical to the
one that the Court considered in Shepard. See 125 S. Ct. at
1257-58. And because it was determined by resorting to
sources of information without the “conclusive significance”
of a prior judicial record, it was not “clearly authorized” by
Almendarez-Torres. Id. at 1262. Likewise the district court’s
factual finding that Ngo’s prior convictions were not part of
a common scheme or plan was not authorized by
Almendarez-Torres, and because the finding was used to
increase Ngo’s guideline range, his sentence violates the
Sixth Amendment.1
  Although the government maintains that Ngo’s sentence
does not violate the Sixth Amendment, it concedes that the
district court nevertheless committed error under Booker by


1
   The problem presented by Shepard arises in cases like Ngo’s
where sentencing occurred under the mandatory guidelines system,
but it will not arise in future guidelines cases in light of Booker’s
remedial opinion. The Sixth Amendment implications of judicial
factfinding have now been cured by Booker with respect to guide-
lines sentencing because the guidelines are no longer binding. But
no such cure exists with respect to statutory enhancements— such
as the one applied in Shepard—which mandate higher sentences
and leave no discretion to the judge.
8                                                 No. 04-2662

sentencing Ngo under the now-defunct mandatory guidelines
scheme. See, e.g., United States v. Schlifer, No. 04-3398, 2005
WL 774914 (7th Cir. Apr. 7, 2005). However, the distinction
is of little import here, because we have decided that Ngo’s
sentence is erroneous because it was based upon impermis-
sible factfinding.
  The government urges the court to review the sentence
for plain error because Ngo forfeited his Booker argument
by not making the appropriate objections in the district
court. Indeed, Ngo did not make any objection relating to
the district court’s authority to determine whether he was
a career offender; he simply argued that the guideline should
not apply. Ngo insists that any objection in the district court
would have been frivolous given the state of the law before
Blakely. This court’s recent decisions make clear, however,
that a defendant who does not make a Sixth Amendment
argument in the district court is entitled to have his sen-
tence reviewed for plain error only. See United States v. Lee,
399 F.3d 864, 866 (7th Cir. 2005); Paladino, 401 F.3d at
481.
  Before an appellate court can correct forfeited error, there
must be (1) error, (2) that is “plain” and (3) that affects sub-
stantial rights. United States v. Cotton, 535 U.S. 625, 631
(2002); United States v. Stewart, 388 F.3d 1079, 1090 (7th
Cir. 2004). Even then, the court should not correct the error
unless it seriously affects the fairness, integrity, or public
reputation of judicial proceedings, Stewart, 388 F.3d at
1079, which is often taken to mean that the error effec-
tuates a “miscarriage of justice,” Paladino, 401 F.3d at 481.
The first two prongs are met in Ngo’s case. His sentence
violates the Sixth Amendment because the court found facts
without a jury and used them to increase Ngo’s guideline
range. And as the parties agree, the district court also erred
by applying the guidelines in a mandatory fashion. The
error is also “plain,” as it is “ ‘clearly contradictory to the
law at the time of appeal.’ ” United States v. Noble, 246 F.3d
946, 955 (7th Cir. 2001) (quoting Johnson v. United States,
No. 04-2662                                                 9

520 U.S. 461, 468 (1997)).
   Next, the sentencing error affected Ngo’s substantial
rights if it was prejudicial, i.e., if the outcome would have
been different without the error. United States v. Olano,
507 U.S. 725, 734 (1993); United States v. Shearer, 379 F.3d
453, 456 (7th Cir. 2004). In Paladino, we noted that deter-
mining whether the outcome would have differed is prob-
lematic without some indication from the district court that
its choice of sentence was (or was not) affected by its belief
that the guidelines were mandatory. In some cases the
record will provide assurances that the sentencing judge did
not impose a longer sentence because of the guidelines. See
Paladino, 401 F.3d at 482-83; Lee, 399 F.3d at 866-67. This
is not such a case. Here, the district court sentenced Ngo to
the lowest term available under the applicable guideline
range and noted that his career offender status had “greatly
increased” his sentence. Nothing in the record suggests that
the district court would have imposed the same sentence
had it known that it was not bound by the guidelines.
Accordingly, we will retain jurisdiction over the case but
order a LIMITED REMAND to the district court in keeping
with the procedure outlined in Paladino.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—5-3-05
