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

No. 05-2484
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.

NICHOLAS GRIGG,
                                             Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
             No. 03 CR 276—J.P. Stadtmueller, Judge.
                         ____________
    ARGUED JANUARY 24, 2006—DECIDED MARCH 24, 2006
                         ____________


  Before RIPPLE, ROVNER and EVANS, Circuit Judges.
  RIPPLE, Circuit Judge. In February 2004, Nicholas Grigg
was indicted on one count of possession of child pornogra-
phy. See 18 U.S.C. § 2252(a)(4)(B). In accordance with a
plea agreement, he pleaded guilty and was sentenced to
37 months’ imprisonment and two years’ supervised
release. Mr. Grigg now challenges his sentence. He contends
that the district court did not understand that it had the
authority, post-Booker, to depart from the sentencing range
recommended by the Sentencing Guidelines. For the reasons
set forth in the following opinion, while retaining jurisdic-
2                                               No. 05-2484

tion, we remand the case to the district court for proceed-
ings consistent with this opinion.


                             I
                     BACKGROUND
  On December 9, 2003, a grand jury sitting in the Eastern
District of Wisconsin returned a one-count indictment,
charging Mr. Grigg with possession of computer video and
image files depicting minors engaged in sexually explicit
activity. See 18 U.S.C. § 2252(a)(4)(B). Mr. Grigg pleaded
guilty to this charge on February 19, 2004. At the sentencing
hearing, the district court calculated an advisory sentencing
range of 37 to 46 months’ imprisonment, to which the
defendant did not object. Mr. Grigg did, however, call two
witnesses, Dr. George Palermo and his father, Richard
Grigg. Dr. Palermo opined that Mr. Grigg suffered from
various mental problems, including a “bipolar illness.” R.37
at 10. He also testified that Mr. Grigg may have been off his
medication when downloading the child pornography.
Richard Grigg testified about his son’s personal problems,
including a poor work history, suicide attempts, a weight
problem and mental illness. Noting Mr. Grigg’s mental and
personal problems, as well as Booker’s directive that the
Guidelines are no longer mandatory, defense counsel
requested that the court depart from the advisory guidelines
range—although he did not specify what an appropriate
sentence might be.
  The district court rejected this request and sentenced
Mr. Grigg to 37 months’ imprisonment and two years’
supervised release. “Congress,” the court explained, “has
seen fit in the PROTECT Act and the Feeney Amendment,
basically, to prohibit departures from Sentencing Guide-
No. 05-2484                                                 3

lines.” Id. at 41. Although the court acknowledged that
Booker and other cases “no longer technically make the
Guidelines mandatory,” id. at 44, it nevertheless ex-
plained that the PROTECT Act and the Feeney Amend-
ment “virtually prohibit judges from departing from the
otherwise applicable Sentencing Guidelines,” id. There-
fore, in light of this legislation, the court held, it was
“obliged to impose the minimum sentence under the
Guidelines.” Id. at 46.
  The Government sought clarification of the court’s
views regarding its discretion to depart from the Guidelines.
The Government asked, “[I]s it the Court’s position today
that it doesn’t believe it can go outside the advisory Guide-
lines because of the nature of the offense and the cases that
the Court has cited[?]” Id. at 56. The court responded, “No,”
explaining that it was aware of its “authority in appropriate
cases to fashion what [it] believe[s] to be a reasonable
sentence in any case.” Id. at 56-57. It added, however, that
“Congress created the Protect Act” because it is, “in the
vernacular, ‘damn mad’ at judges who were continually
putting people on probation because they had the where-
withal to bring in an expensive psychiatrist and say, ‘This
isn’t going to happen again.’ ” Id. at 56. Mr. Grigg raised no
objections at this time to the sentence imposed by the
district court.


                             II
                       DISCUSSION
A. Statutory Background
  In 2003, Congress responded to a series of atrocious
and high-profile child abduction and sexual abuse cases
4                                                   No. 05-2484

by enacting the Prosecutorial Remedies and Other Tools
to End the Exploitation of Children Today Act of 2003
(“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650 (codi-
fied as amended, in pertinent part, at 18 U.S.C.
§ 3553(b)(2)(2004)). The PROTECT Act was designed to
strengthen the laws and procedures for detecting, investi-
gating, prosecuting and incarcerating child kidnappers
and sexual offenders, including those who possess child
pornography. Section 401(d)(1) of the Act—named the
“Feeney Amendment” after the provision’s author, Repre-
sentative Thomas Feeney of Florida—contained a far-
reaching set of sentencing reforms. In pertinent part, the
provision amended 18 U.S.C. § 3553(b) to restrict the
authority of the district courts to depart from the Sentencing
Guidelines in sexual offense and child pornography cases.1
See PROTECT Act, § 401(b), 117 Stat. at 668-69; 18 U.S.C.
§ 3553(b)(2). This legislation preceded United States v. Booker,
543 U.S. 220 (2005), in which the Supreme Court held that


1
  The Feeney Amendment also: (1) eliminated several grounds
for downward departure in child kidnapping and sexual offense
cases; (2) expanded the grounds for appellate reversal of down-
ward departures; (3) limited district courts’ ability to
downwardly depart on remand; (4) prohibited the U.S. Sentenc-
ing Commission from creating new downward departure
guidelines for the next two years; and (5) conditioned certain
departures and adjustments on a government motion. See
generally PROTECT Act, Pub. L. No. 108-21, § 401, 117 Stat. 650,
667-76 (2003)(codified as amended, in pertinent part, at 18 U.S.C.
§ 3553(b)(2) (2004)). In addition, the Feeney Amendment
granted appellate courts the authority to review a lower
court’s departure from the Guidelines de novo. See 18 U.S.C.
§ 3742(e). The Supreme Court in United States v. Booker, 543
U.S. 220, 259 (2005), severed and excised this latter provision
from the Act.
No. 05-2484                                                    5

the mandatory application of the Sentencing Guidelines
violates the Sixth Amendment. The Court’s holding in
Booker, however, focused only on those portions of the
United States Code that generally govern the application of
the Sentencing Guidelines to crimes. See 18 U.S.C.
§ 3553(b)(1). The Court had no occasion to address wheth-
er the sentencing restrictions governed by the Feeney
Amendment also violate the Sixth Amendment. It is that
question to which we now turn.


B. The Continued Vitality of the Feeney Amendment
   post-Booker
  Mr. Grigg submits that the district court incorrectly
interpreted the Feeney Amendment as cabining the
court’s discretion to impose a non-Guidelines sentence;
to read the Feeney Amendment in such a way, according
to Mr. Grigg, is inconsistent with the Supreme Court’s
holding in Booker. Because Mr. Grigg did not object to the
district court’s application of the Sentencing Guidelines
at his hearing, however, we must review the district
court’s decision only for plain error. United States v. Lafuente,
426 F.3d 894, 899 (7th Cir. 2005). We shall overturn the
judgment of the district court if its error was plain, affected
the defendant’s substantial rights and rose to the level of a
miscarriage of justice. Id.
  In Booker, the Supreme Court held that a sentencing
judge’s mandatory application of the Sentencing Guidelines
violates the Sixth Amendment when facts increasing the
sentencing range have been found by the judge, rather than
stipulated to by a defendant or found by a jury beyond a
reasonable doubt. Booker, 543 U.S. at 243-44. As a remedy,
the Court severed and excised 18 U.S.C. § 3553(b)(1), which
6                                                 No. 05-2484

mandated that, in the absence of unusual circumstances, the
district court impose a sentence within the applicable
guidelines range. Booker, 543 U.S. at 245-46. The Court,
however, had no occasion to mention § 3553(b)(2)—the
provision added to the statute by the Feeney Amendment,
which governs the application of the Sentencing Guidelines
to sexual offense crimes. See PROTECT Act, § 401(b), 117
Stat. at 668-69; 18 U.S.C. § 3553(b)(2). We now must confront
the question of whether Booker’s rationale for excising
§ 3553(b)(1) from the statute also extends to § 3553(b)(2).
  Although this is a question of first impression for us, the
Second and Tenth Circuits have determined that
§ 3553(b)(2) possesses the same Sixth Amendment defect
as does § 3553(b)(1). See United States v. Selioutsky, 409
F.3d 114, 117 (2d Cir. 2005) (“There is no principled basis for
distinguishing subsection 3553(b)(1) from 3553(b)(2) with
respect to the rationale of Booker.”); United States v. Yazzie,
407 F.3d 1139, 1146 (10th Cir. 2005) (“[W]e hold that treating
the Guidelines as mandatory—regardless of whether the
defendant is sentenced under § 3553(b)(1) or § 3553(b)(2)—is
error.”); United States v. Sharpley, 399 F.3d 123, 127 n.3 (2d
Cir. 2005) (“[W]e see no unique feature of Guidelines
sentences for child crimes and sexual offenses that would
prevent them from violating the Sixth Amendment in the
same manner as Guidelines sentences for other crimes.”).
  We concur with our sister circuits. According to
§ 3553(b)(2), when sentencing defendants for crimes involv-
ing children and sexual offenses, the district court “shall
impose a sentence” within the calculated guidelines range,
unless it finds mitigating circumstances that have “been
affirmatively and specifically identified as a permissible
ground of downward departure in the sentencing guidelines
or policy statements issued under section 994(a) of title 28.”
No. 05-2484                                                       7

See 18 U.S.C. § 3553(b)(2)(ii); see also id. § 3553(b)(2)(iii). This
language mirrors that of § 3553(b)(1); the sole difference
between the two subsections is that § 3553(b)(2) restricts
stringently the mitigating circumstances that qualify for a
downward departure, whereas § 3553(b)(1) defines those
circumstances more broadly. Compare id. § 3553(b)(1)
(“Except as provided in paragraph (2), the court shall impose
a sentence of the kind, and within the range, referred to in
subsection (a)(4) . . . .”) (emphasis added), with id.
§ 3553(b)(2) (“In determining whether a circumstance
was adequately taken into consideration, the court shall
consider only the sentencing guidelines, policy statements, and
official commentary of the Sentencing Commission, together
with any amendments thereto by act of Congress.”) (empha-
sis added).
  In reviewing § 3553(b)(2) in light of Booker, we con-
clude that it violates the Sixth Amendment by mandat-
ing a sentence within the range recommended by the
Sentencing Guidelines. It was precisely this requirement
that the Supreme Court found constitutionally objection-
able in Booker. Given the similarities between the two
subsections, we believe the same objections voiced by
that Court also apply to § 3553(b)(2). In reaching this
conclusion, we join the Second and Tenth Circuits and
hold that § 3553(b)(2) is subject to the same remedy that
Booker imposes: “excising and severing” the mandatory
language and replacing it with an “advisory Guidelines
regime” under which sentences are reviewed for reasonable-
ness. See Selioutsky, 409 F.3d at 117; Yazzie, 407 F.3d at 1145-
46; Sharpley, 399 F.3d at 127 n.3; see also Booker, 543 U.S.
at 258-63.
 We are mindful of Congress’ view, expressed in the
PROTECT Act, regarding prosecuting and sentencing
8                                                  No. 05-2484

child kidnappers and sexual offenders. Although we
must hold today that § 3553(b)(2) cannot constrain the
discretion of a district court to impose a sentence outside the
range recommended by the Sentencing Guidelines, we
nevertheless believe that district courts, in the course of
selecting an appropriate sentence, ought to give respectful
attention to Congress’ view that crimes such as Mr. Grigg’s
are serious offenses deserving serious sanctions.2


C. The District Court’s Application of the Sentencing
   Guidelines
  With § 3553(b)(2) excised, the applicable sentencing
regime for Mr. Grigg is the advisory Guidelines approach
set forth by the Supreme Court in Booker. See 543 U.S. at 246-
47; see also United States v. Woodard, 408 F.3d 396, 399 (7th
Cir. 2005). In this case, the district court’s state-
ments regarding its understanding as to whether the Feeney
Amendment constrained its discretion to sentence Mr. Grigg
below the range recommended by the Sentencing Guide-
lines may be inconsistent. For instance, although the court
stated at the hearing’s outset that it would “consult” the
Sentencing Guidelines when fashioning a sentence under 18
U.S.C. § 3553(a)(2), as required by “Blakely, Booker, Fanfan


2
  See, e.g., PROTECT Act, § 501(12), 117 Stat. at 678 (presenting
congressional findings) (“Child pornography results from the
abuse of real children by sex offenders; the production of child
pornography is a byproduct of, and not the primary reason
for, the sexual abuse of children.”); 149 Cong. Rec. S5113,
S5124 (2003) (statement of Sen. Hatch) (“We believe that in
these child molestation cases, pornography cases, prostitution
cases, child rape cases, and kidnapping cases the sentencing
guidelines ought to be followed.”).
No. 05-2484                                                9

and Paladino,” R.37 at 5, it later stated that “Congress has
seen fit in the Protect Act and the Feeney Amendment,
basically, to prohibit departures from Sentencing Guide-
lines,” id. at 41. As the hearing progressed, the court again
seemed to indicate that the Feeney Amendment’s provisions
are mandatory, noting that they “virtually prohibit judges
from departing from the otherwise applicable Sentencing
Guidelines.” Id. at 44. Later, the court indicated in a more
explicit manner that it considered itself bound to apply the
Guidelines:
    [A]gainst the entire backdrop of what underlies
    what Congress had in mind when child pornography
    was criminalized, and, more to the point, what Con-
    gress had in mind last year when they adopted the
    Child Protect Act and the Feeney Amendment,
    which basically precludes judges [from] departing
    from the Sentencing Guidelines in cases of this type, I’m
    obliged to impose the minimum sentence under the Guide-
    lines.
Id. at 46 (emphasis added).
   Although the court acknowledged elsewhere that the
Guidelines are “advisory,” see, e.g., id. at 5, these state-
ments are nonetheless unclear given that the court also
asserted that the Feeney Amendment prohibits discre-
tionary sentences outside of the guidelines range. For ex-
ample, at the close of the hearing, the Government asked the
district court, “[I]s it the Court’s position today that
it doesn’t believe it can go outside the advisory Guide-
lines[?]” Id. at 56. The court replied, “No,” but then re-
marked:
    The Court is very much aware—Congress has spoken.
    And this is [a] very unique area of the law. Congress
    created the Protect Act.
10                                                 No. 05-2484

        And for the reasons that are—I articulated, Congress
     is, in the vernacular, “damn mad” at judges who
     were continually putting people on probation be-
     cause they had the wherewithal to bring in an expensive
     psychiatrist and say, “This isn’t going to happen again.”
Id. at 56.
   Viewing the record in its entirety, we must conclude
that the district court may have plainly erred in treating
the Guidelines as binding authority. Following the pro-
cedure established in United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005), a limited remand is in order.3 The
district court should state whether it understood
that, notwithstanding the mandatory language of the
Feeney Amendment, it was not bound by the Guidelines,
and if it did not, whether, in light of our opinion in this case,
it wishes to resentence Mr. Grigg.


                         Conclusion
  We order a limited remand with respect to Mr. Grigg’s
sentence while retaining jurisdiction in accordance with the
procedures set forth in Paladino.
                                                    REMANDED




3
  At oral argument, the Government stated that it does not
oppose remanding the case to permit the district court to
clarify its position.
No. 05-2484                                            11

A true Copy:
       Teste:

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




                USCA-02-C-0072—3-24-06
