                            UNPUBLISHED ORDER
                       Not to be cited per Circuit Rule 53




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

                            Submitted June 23, 2005*
                             Decided July 11, 2005

                                     Before

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-2739

UNITED STATES OF AMERICA,                   Appeal from the United States
    Plaintiff-Appellee,                     District Court for the Northern
                                            District of Illinois, Eastern Division
      v.
                                            No. 03 CR 450
BABAJIDE SOBITAN,
    Defendant-Appellant.                    John W. Darrah,
                                            Judge.


                                   ORDER

      Babajide Sobitan was convicted of attempting to reenter the United States
without authorization after having been deported, 8 U.S.C. § 1326(a), and was
sentenced to 97 months’ imprisonment. He argues under United States v. Booker,
125 S. Ct. 738 (2005), that the district court improperly treated the sentencing
guidelines as mandatory and impermissibly increased his offense level based on


      *
       After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-2739                                                                   Page 2


facts found only by a preponderance of the evidence. Sobitan preserved these
arguments by objecting at sentencing, and thus our review is plenary. United
States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005); United States v. Hollis, 230
F.3d 955, 958-59 (7th Cir. 2000); United States v. Paz, 405 F.3d 946, 948-49 (11th
Cir. 2005). Thus we must vacate Sobitan’s sentence unless the government can
establish that the error was harmless, Schlifer, 403 F.3d at 854, a burden that the
government concedes it cannot meet here. Accordingly, we VACATE Sobitan’s
sentence and REMAND for resentencing in light of Booker. See id.
