                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                          Submitted September 28, 2005*
                           Decided September 28, 2005

                                       Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

No. 04-3709

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Western District of
                                             Wisconsin
      v.
                                             No. 04-CR-76-C-01
EUGENE HUGHES,
    Defendant-Appellant.                     Barbara B. Crabb,
                                             Chief Judge.

                                     ORDER

        Eugene Hughes pleaded guilty to distributing cocaine base in violation of 21
U.S.C. § 841(a)(1). Hughes objected to the presentence investigation report based
on United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and at his sentencing
hearing he requested that the court impose a discretionary sentence of 132 months
rather than adhering to the sentencing guidelines. The district court, believing
itself bound by guidelines, sentenced Hughes to 188 months’ imprisonment—the
lowest available sentence under the guidelines. In light of the Supreme Court’s


      *
        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. 04-3709                                                                   Page 2

subsequent decision in United States v. Booker, 125 S. Ct. 738 (2005), invalidating
the mandatory application of the guidelines, Hughes’s sentence is erroneous. See
United States v. White, 406 F.3d 827, 835 (7th Cir. 2005); United States v. Castillo,
406 F.3d 806, 823 (7th Cir. 2005).

       Having preserved the error in the district court, Hughes puzzlingly requests
that we order a limited remand under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005). But that case is inapposite here. As the government points out, Hughes
is entitled to a full resentencing unless the government can demonstrate that the
error did not result in a higher sentence. United States v. Schlifer, 403 F.3d 849,
854 (7th Cir. 2005); see United States v. Macedo, 406 F.3d 778, 788 (7th Cir. 2005)
(explaining that our review is plenary where a Booker-type objection was made in
the district court). The government concedes that it cannot meet its burden in this
case, particularly because the district court stated that the 188-month sentence was
“unfortunate” and “out of line.” We agree that the error was not harmless, and we
therefore VACATE the sentence and REMAND the case for resentencing in light of
Booker.
