                           NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                    Fed. R. App. P. 32.1



                   United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604
                                       May 28, 2010


                                          Before

                             FRANK H. EASTERBROOK , Chief Judge

                             WILLIAM J. BAUER, Circuit Judge

                             TERENCE T. EVANS, Circuit Judge


No. 08-3799

UNITED STATES OF AMERICA,                                  On Remand from the
      Plaintiff-Appellee,                                  Supreme Court of the United
                                                           States.
              v.

MARCUS L. WELTON,
     Defendant-Appellant.



                                           Order

       Our prior opinion, 583 F.3d 494 (7th Cir. 2009), affirmed Welton’s sentence after
concluding that the principle of Kimbrough v. United States, 552 U.S. 85 (2007), does not
apply to the career-offender Guideline, U.S.S.G. §4B1.1. While Welton’s petition for
certiorari was pending, we overruled the panel’s opinion in this case. United States v.
Corner, 598 F.3d 411 (7th Cir. 2010) (en banc). The Supreme Court then granted
Welton’s petition and remanded with instructions to reconsider in light of Corner.
No. 09-8367 (U.S. Mar. 20, 2010).

       Welton contended in the district court that the principle of Kimbrough applies to
§4B1.1, and Corner holds that this position is correct. The district court erred in thinking
otherwise (though the district judge is not responsible for this error, which was based
on earlier decisions that Corner overruled). In a post-remand filing under Circuit Rule
No. 08-3799                                                                 Page 2


54, the United States contends that the judge’s error was harmless. But the burden of
demonstrating harmless error is on the prosecutor, and it is not evident to us that the
district judge was determined to impose the same sentence without regard to the effect
of Kimbrough on §4B1.1.

         A remand for resentencing is the best way to find out. If, as the United States
contends, Corner does not affect Welton’s sentence, the district judge has only to say so.
But if it does affect the exercise of discretion in sentencing, Welton is entitled to the
benefit.

       Welton’s sentence is vacated, and the case is remanded for resentencing
consistent with Kimbrough and Corner.
