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

No. 05-1110
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                 v.

CHARLES B. GOKEY,
                                             Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
               for the Western District of Wisconsin.
              No. 04 CR 115—John C. Shabaz, Judge.
                          ____________
   ARGUED SEPTEMBER 20, 2005—DECIDED FEBRUARY 6, 2006
                     ____________




  Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
  MANION, Circuit Judge. Charles B. Gokey pleaded guilty
to distributing cocaine base. At sentencing, which occurred
after this court’s decision in United States v. Booker, 375 F.3d
508 (7th Cir. 2004), but before the Supreme Court issued its
decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738
(2005), the district court concluded that the sentenc-
ing guidelines could not be constitutionally applied to
Gokey. The district court then disregarded the Guidelines
2                                                  No. 05-1110

and instead sentenced Gokey to 235 months’ imprisonment
based on the statutory range. The district court also en-
tered an alternative sentence, ruling that if the Supreme
Court upheld the Guidelines, it would sentence Gokey to
210 months in prison—the highest sentence available under
the calculated Guideline range. Gokey appeals, arguing that
he must be resentenced because, under Booker, the Guide-
lines are still advisory, and therefore the district court erred
in disregarding the Guidelines entirely. We agree and
therefore remand for resentencing.


                               I.
  Gokey has been in trouble with the law since he was
fourteen, and his criminal history includes the offenses of
burglary, attempted homicide, and the use of a dangerous
weapon. He has also been associated with the Latin Kings
gang since he was fifteen. This case stems from Gokey’s
latest offense—distribution of cocaine base in and around
the Lac Courte Oreilles Reservation in Sawyer County,
Wisconsin. Following a long-term drug investigation of the
distribution of cocaine base at the Lac Courte Oreilles
Reservation, a grand jury indicted Gokey for distribution of
cocaine base on April 8, 2004. On that date, a confidential
informant purchased six individually wrapped pieces of
crack cocaine for $300 from Gokey.
   On October 18, 2004, Gokey pleaded guilty to the April 8,
2004, distribution count. The government prepared and
filed a Pre-Sentence Report (“PSR”) on November 29, 2004.
The PSR detailed grand jury testimony establishing that
Gokey had distributed crack on several other occasions, and
attributed 71.364 grams of crack to Gokey. The PSR also
recommended enhancements for Gokey’s role in the offense
No. 05-1110                                                  3

and his use of a minor in the offense, but recommended a
three-level reduction for acceptance of responsibility.
  The sentencing hearing took place on January 7, 2005. At
that time, this court had already decided Booker, but the
Supreme Court had not yet issued its decision in Booker.
Based on this court’s decision in Booker, the government
posited that the district court could not constitutionally
assess upward adjustments based on the total drug quantity
or based on Gokey’s role in the offense or use of a minor
because Gokey had not admitted to those adjustments, nor
had they been proven beyond a reasonable doubt to a jury.
  Relying on our decision in Booker, the district court
concluded that the Guidelines were not severable and
therefore concluded that it could not constitutionally apply
the Guidelines to Gokey. Instead, the district court imposed
a sentence consistent with the provisions of 18 U.S.C. § 3553.
Specifically, the district court sentenced Gokey to 235
months in prison, finding that Gokey was a candidate for
recidivism, and that this sentence is “appropriate to achieve
the sentencing objectives of punishment, rehabilitation,
deterrence and protection of the community.”
  However, the district court also entered an alternative
sentence of 210 months’ imprisonment under the Guide-
lines. In setting this alternative sentence, the district court
considered the PSR and Gokey’s objections to certain
enhancements. The district court concluded that Gokey’s
offense conduct involved at least 50 grams of cocaine base,
placing him at offense level 32. The district court denied
Gokey a reduction for acceptance of responsibility, but
rejected the government’s request for an increase in Gokey’s
offense level based on a supervisory role in the offense or
his use of a minor. This resulted in a range of 168-210
months under the Guidelines, with the district court
sentencing Gokey, alternatively, to the maximum.
4                                                   No. 05-1110

  Following his sentence, the Supreme Court issued its
decision in Booker, holding that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”
Booker, 125 S.Ct. at 756. In Booker, the Supreme Court also
invalidated the mandatory application of the Guidelines,
holding that district courts are obligated to consider the
Guidelines but are not bound by them. Id. at 767. Gokey
appeals, arguing that his 235-month sentence must be
vacated based on Booker.


                               II.
   On appeal, Gokey argues that his 235-month sentence
must be vacated and this case remanded for resentencing in
light of Booker. Specifically, Gokey argues that the district
court erred by sentencing him as though the Sentencing
Guidelines were defunct, as opposed to advisory. Because
Gokey presented a Booker-type objection in the district court,
our review is plenary. See United States v. Macedo, 406 F.3d
778, 788 (7th Cir. 2005).
   Gokey is correct. As the Supreme Court explained in
Booker, “the guidelines ‘must’ still be ‘consult[ed]’ and
‘take[n] into account when sentencing.’ ” United States v.
Alburay, 415 F.3d 782, 786 (7th Cir. 2005) (quoting Booker,
125 S.Ct. at 767). See also United States v. George, 403 F.3d 470,
472-73 (7th Cir. 2005) (holding that the district court erred
in failing to consider the Guidelines, but that the error was
harmless). More specifically, “[t]he Supreme Court’s
decision in Booker requires the sentencing judge first to
compute the guidelines sentence just as he would have done
before Booker, and then because the Court demoted the
No. 05-1110                                                   5

guidelines from mandatory to advisory status—to decide
whether the guidelines’ sentence is the correct sentence to
give the particular defendant.” United States v. Dean, 414
F.3d 725, 727 (7th Cir. 2005).
  The government admits that the district court erred in
treating the Guidelines as defunct, as opposed to advisory,
but argues that any error in sentencing him to 235 months
was harmless. In support of its position, the government
cites George, 403 F.3d 470. In George, the district court
incorrectly proceeded as if the Guidelines were defunct and
sentenced the defendant as if it had the discretion to
sentence the defendant to any term within the statutory
limit of zero to sixty months. Id. at 472. The district court in
George then sentenced the defendant to forty-eight months
in prison. Id. On appeal, this court held that the district
court’s error in treating the Guidelines as defunct (as
opposed to advisory) was harmless. Id. at 473. Specifically,
we reasoned that because, under the Guidelines, George’s
sentencing range was 63 to 78 months, had the district court
“known that the Guidelines continue to have substantial
sway, he might have imposed a sentence closer to 60
months.” Id. However, as we explained, “it is inconceivable
that anticipation of the ongoing need to start from and
respect the Guideline framework would have led to a lower
sentence . . . .” Accordingly, we held that “[a]ny error
therefore was harmless.” Id.
  Unlike George, in which the Guideline range dictated a
higher sentence than the one imposed, in this case the
district court’s discretionary sentence exceeded the Guide-
line range. Therefore, we cannot say that the district court’s
failure to treat the Guidelines as defunct constituted harm-
less error.
6                                                 No. 05-1110

  In response, the government argues that any error was
also harmless because the record shows that “[w]hile the
district court did not specifically state that it was using the
Guidelines as advisory, it is clear that the district court did
just that.” The government then notes that the district court
rejected a reduction for acceptance of responsibility and
eliminated an enhancement for the role in the offense and
the use of a minor. Contrary to the government’s position,
the sentencing transcript does not support its view that the
district court took into account the Guidelines in sentencing
Gokey to 235 months’ imprisonment. Rather, the sentencing
transcript shows that the district court proceeded under two
distinct assumptions: First, the district court stated that “the
guidelines are not constitutional,” and that it would there-
fore “impose a sentence consistent with the provisions set
forth in 18 United States Code Section 3553, the appropriate
sentence within the statutory limits as the count of convic-
tion.” The district court then proceeded to discuss the
various factors set forth in § 3553. Significantly, though, in
justifying its 235-month sentence, the district court did not
discuss the Guidelines. Rather, the district court only
considered the Guidelines after noting that “[i]n the event
that the United States sentencing guidelines are ruled
constitutional, the Court now imposes an alternative
sentence that relies upon those guidelines . . . .” It was in
this portion of the sentencing hearing that the district court
considered the various objections to the PSR.
   Moreover, in sentencing Gokey alternatively under the
Guidelines, the district court noted that it normally imposed
identical sentences with or without the Guidelines, but that
it would not do so in this case because the Guideline range
limited the maximum sentence to 210 months. Instead, as
noted above, the district court entered two distinct sen-
tences—235 months without the Guidelines and 210 under
the Guidelines. What the district court did not do, however,
No. 05-1110                                                  7

was to explain whether it would have sentenced Gokey at
235 months if the Guidelines were advisory.
   It may well be that the district court would have sen-
tenced Gokey to 235 months in prison (as opposed to
sentencing him within the 168-210 range) had it known
that the Guidelines were advisory and not defunct. How-
ever, “ ’we require a higher degree of certainty’ for a
conclusion that the guideline misapplication was harmless.”
United States v. Graves, 418 F.3d 739, 746 (7th Cir. 2005)
(quoting United States v. Schlifer, 403 F.3d 849, 854 (7th Cir.
2005). Cf. Graves, 418 F.3d at 746 (remanding for
resentencing where we could “find no evidence in the
record proving conclusively that the district court would
have chosen the exact same sentence for [the defendant] had
he known that the guidelines were merely advisory”). In
this case, there is no basis to know how the district court
would have proceeded had it known the Guidelines were
advisory. Therefore, we must vacate Gokey’s sentence and
remand for resentencing under the framework established
in Booker. We also remind the district court that although “a
sentence within a properly calculated guideline range ‘is
entitled to a rebuttable presumption of reasonableness,’
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005),
‘[t]he farther the judge’s sentence departs from the guide-
lines sentence . . . the more compelling the justification
based on factors in section 3553(a) that the judge must offer
in order to enable the court of appeals to assess the rea-
sonableness of the sentence imposed.’ United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005).” United States v. Castro-
Juarez, 425 F.3d 430, 433 (7th Cir. 2005).


                             III.
 The district court erred in sentencing Gokey as if the
Guidelines were defunct, as opposed to advisory. Although
8                                                No. 05-1110

the district court may still find a 235-month sentence
appropriate, on this record, we cannot conclusively say that
the district court would have assessed that sentence had it
known that the Guidelines remained advisory. Accordingly,
we cannot conclude that the error was harmless. We
therefore VACATE Gokey’s sentence and REMAND for
resentencing in light of Booker.

A true Copy:
       Teste:

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




                    USCA-02-C-0072—2-6-06
