                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                            Submitted September 27, 2006
                             Decided November 14, 2006

                                        Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. KENNETH F. RIPPLE, Circuit Judge

                    Hon. MICHAEL S. KANNE, Circuit Judge

No. 04-2194

UNITED STATES OF AMERICA,                        Appeal from the United States District
                 Plaintiff-Appellee,             Court for the Northern District
                                                 of Illinois, Eastern Division.
      v.
                                                 No. 01 CR 881
FABIAN LAFUENTE,
             Defendant-Appellant.                Harry D. Leinenweber,
                                                 Judge.

                                      ORDER

    Fabian Lafuente was convicted of possession of cocaine with the intent to distribute,
attempted possession of cocaine with the intent to distribute, and possession of a
firearm with an altered, removed, or obliterated serial number. He was sentenced to
300 months’ imprisonment. On appeal, we affirmed the conviction but ordered a
limited remand in accordance with United States v. Paladino, 401 F.3d 471 (7th Cir.
2005), in order to determine if the district judge would have imposed a different
sentence in light of United States v. Booker, 543 U.S. 220 (2005). See United States v.
Lafuente, 426 F.3d 894 (7th Cir. 2005). After a hearing, the district judge entered an
order that he “would have sentenced Defendant to a total sentence within the U.S.
No. 04-2194                                                                      Page 2

Sentencing Guidelines if they were construed as advisory under U.S. v. Booker, 125 S.
Ct. 735 (2005).”

     As we have noted before, “Paladino does not require any particular ‘magic words’
... only that the district judge indicate whether [he] would have imposed a different
sentence under an advisory Guideline scheme.” United States v. Askew, 417 F.3d 648,
649 (7th Cir. 2005). Although the district court did not exactly answer the remand
question, “whether [the court] would have imposed the same sentence” if the
Guidelines were advisory, Lafuente, 426 F.3d at 899, in the absence of other
information we would be inclined to view this as an affirmative answer.


   But in this case, the answer is not so simple. At the hearing on remand, defense
counsel reminded the district judge that during the original sentencing he had noted
that he felt constrained by the Sentencing Guidelines. After some discussion about the
extent of the district court’s discretion in a Paladino remand, the following dialog
occurred:


              “Court: ... [T]he precise answer to the question then is I
              would impose a sentence within the guidelines. I do not see
              any 3553 factors that would have caused me to sentence
              him outside the guidelines.
              [Defense Counsel]: But if the matter were remanded to you
              you would impose...
              Court: If the matter were remanded to me I would impose
              a sentence of 292 months.”
              Tr. Aug. 30, at 6-7.


    A sentence of 292 months’ imprisonment would have been within the Guidelines
range all along. See Lafuente 426 F.3d at 896-97 (setting the advisory guideline range
for the remand at 292 to 365 months). In this sense, we are uncertain how it is that
making the Guidelines advisory now puts a sentence of 292 months on the table where
the trial court felt that 292 months was not an option before Booker. We can imagine
such scenarios but we can only speculate. And that is the point: we will not engage in
speculation where the constitutionality of a sentence is in question. The government
agrees in its reply to the district court’s order that a full remand for re-sentencing is
appropriate in light of the proceedings below.


   We asked whether the district court would have imposed the same sentence if the
Guidelines were advisory. Because the district court’s order is slightly ambiguous on
this point, and because the district judge indicated at the hearing that he would likely
No. 04-2194                                                              Page 3

not sentence the defendant to the same term of months, we VACATE the defendant’s
sentence and REMAND this matter to the district court for re-sentencing.
