                           NONPRECEDENTIAL DISPOSITION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

                                     Argued May 19, 2010
                                     Decided May 21, 2010

                                             Before

                              JOEL M. FLAUM, Circuit Judge

                              DANIEL A. MANION, Circuit Judge

                              DAVID F. HAMILTON, Circuit Judge

No. 10-1210

UNITED STATES OF AMERICA,                             Appeal from the United States District
                  Plaintiff-Appellee,                 Court for the Western District
                                                      of Wisconsin
       v.
                                                      No. 3:09-cr-00115-bbc-1
LESUIN J. GARCIA,
                      Defendant-Appellant.            Barbara B. Crabb,
                                                      Judge.

                                           ORDER

        On April 17, 2009, Lesuin Garcia was convicted of state bank fraud crimes in Kentucky
and sentenced to three years in state prison. He was later charged in the Western District of
Wisconsin with violations of the federal bank fraud statute. Garcia pled guilty to two counts
of the federal indictment. The advisory sentencing guideline for his federal crimes was four
to ten months, using an offense level that had been increased by treating Garcia’s related
Kentucky crimes as relevant conduct. The federal district court sentenced Garcia on January
15, 2010, to 10 months of imprisonment to run concurrently with his Kentucky sentence. The
parties agree that the district court should have, but did not, calculate Garcia’s guideline range
to include credit under U.S.S.G. § 5G1.3(b)(1) for the nine months he had already served in
No. 10-1210                                                                                   Page 2

Kentucky because those Kentucky acts had been used to raise his offense level by four levels.
As a result, Garcia’s 10-month sentence represented an upward variance of about nine months.
The district court did not explain this aspect of its sentence.

        At oral argument, Garcia’s counsel informed the court that Garcia has been released
from custody by Kentucky (presumably on parole) and is listed as “in transit” to federal
prison. The government’s counsel conceded that, under these circumstances, the district
court’s incorrect guideline application cannot be considered harmless without further
explanation. We therefore vacate Garcia’s sentence and remand his case to the district court
with instructions to re-sentence Garcia as soon as possible. The district court, of course, might
exercise its discretion to impose a sentence with the same or similar practical effect on Garcia,
exercising its discretion under United States v. Booker and Gall v. United States, but must explain
its reasons for doing so. See United States v. Booker, 543 U.S. 220 (2005); Gall v. United States, 552
U.S. 38 (2007).

       Accordingly, we VACATE Garcia’s sentence and remand to the district court for re-
sentencing. The mandate shall issue immediately.
