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


                                  June 28, 2005

                                       Before

                     Hon. FRANK H. EASTERBROOK, Circuit Judge

                     Hon. ILANA DIAMOND ROVNER, Circuit Judge

                     Hon. DIANE P. WOOD, Circuit Judge

Nos. 02-3238                                          Appeal from the United
                                                      States District Court for the
UNITED STATES OF AMERICA,                             Northern District of Illinois,
      Plaintiff-Appellee,                             Eastern Division.
               v.
                                                      No. 98 CR 923
LISSETT RIVERA,                                       Blanche M. Manning, Judge.
       Defendant-Appellant.

                                       Order

  The court’s opinion of June 16, 2005, is amended on page 4. The last paragraph of
the opinion shall be replaced with the following language:

    By deciding not to take a cross-appeal, the United States has ensured that Rivera's
  sentence cannot be increased. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S.
  473, 479-82 (1999). (Earlier decisions, such as United States v. Schmeltzer, 960 F.2d
  405, 408-09 (5th Cir. 1992), holding that a court of appeals may increase a
  defendant's sentence whether or not the prosecutor filed a notice of appeal, do not
  survive Neztsosie.) But the lack of a cross-appeal does not entitle Rivera to another
  shot at a sentence below 97 months, if the only lawful outcome on remand would
  be application of the statutory minimum. It is accordingly unnecessary for us to
  consider whether Rivera's sentencing range under the Guidelines was calculated
  correctly; she cannot benefit from resentencing. Nor is a remand under Paladino
  appropriate, for Booker does not confer on district judges any discretion to give
  sentences below statutory floors. Any error the district judge may have made in
  resolving factual disputes in order to apply the Guidelines was harmless. Cf. United
  States v. Lee, 399 F.3d 864 (7th Cir. 2005).
