                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53



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

                              Submitted March 9, 2005
                               Decided July 12, 2005

                                        Before

                          Hon. DANIEL A. MANION, Circuit Judge

                          Hon. DIANE P. WOOD, Circuit Judge

                          Hon. DIANE S. SYKES, Circuit Judge

No. 04-2083
                                                 Appeal from the United States District
UNITED STATES OF AMERICA,                        Court for the Southern District
              Plaintiff-Appellee,                of Illinois

      v.                                         No. 03 CR 30191

RAPP CORNELIUS CHAIRS,                           G. Patrick Murphy,
           Defendant-Appellant.                  Chief Judge.


No. 03-3137

UNITED STATES OF AMERICA,                        Appeal from the United States District
              Plaintiff-Appellee,                Court for the Northern District
                                                 of Illinois, Eastern Division
v.
                                                 No. 97 CR 376-2
DARIUS HOLLINS,
           Defendant-Appellant.                  Harry D. Leinenweber,
                                                 Judge.


                                     ORDER

   We have consolidated for decision two direct criminal appeals in which the parties
have moved to remand the cases for resentencing in light of the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005). Proceedings in both appeals
Nos. 04-2083 & 03-3137                                                            Page 2

were stayed pending the outcome of that case and position statements have since been
received from the parties. In their position statements, the parties in both appeals
agree that the appellant preserved a meritorious constitutional objection under Booker
to factual determinations made by the district judge at sentencing using a
preponderance standard that increased the imprisonment range under the United
States Sentencing Guidelines. The government concedes in both appeals that the error
was not harmless, and we agree with that assessment. We therefore vacate the
appellants’ sentences and remand these appeals for resentencing.

       Rapp Cornelius Chairs pleaded guilty to assaulting a federal officer, 18 U.S.C.
§ 111(a), and was sentenced to 51 months’ imprisonment. The district court arrived at
this guidelines sentence by applying the base offense level for aggravated assault,
U.S.S.G. § 2A2.2(a), and employing four upward adjustments: using a motor vehicle
as a dangerous weapon, id. § 2A2.2(b)(2)(C); causing bodily injury to the victim, id.
§ 2A2.2(b)(3)(A); targeting a government officer, id. § 3A1.2(a); and obstructing justice,
id. § 3C1.1. Chairs objected at sentencing to the district court’s calculation of the base
offense level, arguing that the Supreme Court’s decision in Apprendi v. New Jersey,
530 U.S. 466 (2000), “requires proof beyond a reasonable doubt to transform a
presumed ‘simple’ assault to an aggravated one.” Chairs also objected to each of the
four upward adjustments and the district court’s use of a preponderance standard in
determining the facts underlying his sentence. The district court denied the objections,
concluding that Chairs had no argument under Apprendi.

       Darius Hollins was indicted for conspiracy to import cocaine from Jamaica, 21
U.S.C. §§ 963, 952(a), 960(a), and for attempting to import cocaine on several
occasions, id. At trial the government presented evidence of the amount of cocaine that
members of the conspiracy attempted to import on each occasion alleged in the
indictment. The jury ultimately found Hollins guilty of conspiracy and a single count
of attempting to import 780 grams of cocaine. At sentencing Hollins argued that,
pursuant to Apprendi, his base offense level should be determined by this 780-gram
amount as that was the only drug amount supported by a jury verdict of guilty. The
district court disagreed and instead found that Hollins’s conspiracy conviction
encompassed relevant conduct involving over 12 kilograms of cocaine, a determination
that increased Hollins’s base offense level under the guidelines. See U.S.S.G.
§ 2D1.1(c). After imposing a four-level upward adjustment for Hollins’s role as a leader
or organizer of the criminal enterprise, id. § 3B1.1(a), the district court sentenced
Hollins to 188 months’ imprisonment, the low end of the guideline range.

      In each appeal, the district court made findings that increased the appellant’s
offense level based on facts not proven beyond a reasonable doubt or admitted by the
appellant in a guilty plea. Accordingly, as the government admits, the resulting
sentences violate the appellants’ constitutional rights. See Booker, 125 S. Ct. at 751-52,
756. And since the appellants preserved their constitutional objections to their
sentences, the burden falls on the government to prove that the sentencing error in
Nos. 04-2083 & 03-3137                                                           Page 3

each case was harmless, in the sense that it had no effect on the appellant’s
substantial rights. See United States v. Vonn, 535 U.S. 55, 62 (2002); see also United
States v. Harbin, 250 F.3d 532, 542 (7th Cir. 2001). Here, however, the government
has conceded that it cannot show that Chairs’s and Hollins’s sentences were unaffected
by the constitutional error. The only remaining question is what remedy should be
chosen to correct this error.

        Typically, when we have concluded that constitutional error has occurred in a
case and that the error is not harmless, we have vacated the appellant’s sentence and
remanded the case for resentencing. See, e.g., United States v. Jackson, 32 F.3d 1101,
1109 (7th Cir. 1994). The only exception has been the line of plain error cases
addressed by our decision in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005),
which calls for a limited remand of sentences affected by Booker in all cases where we
are not confident that the district court would have imposed the same sentence in the
context of advisory guidelines. See also United States v. Lee, 399 F.3d 864 (7th Cir.
2005) (recognizing that the district court’s inclinations will be clear in some cases and
thus that a limited remand is not always required). Unlike Paladino, the present cases
both involve defendants who preserved the Booker-type objection at the district court
level. In these cases, we have followed the general rule noted above that the sentence
must be vacated unless the error was harmless. See United States v. Schlifer, 403 F.3d
849, 854 (7th Cir. 2005). Accordingly, in light of the fact that we cannot say that these
errors were harmless, we VACATE the appellants’ sentences and REMAND the
appeals for resentencing in accordance with Booker.
