                              UNPUBLISHED ORDER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. 04-3967

UNITED STATES OF AMERICA,                   Appeal from the United States District
    Plaintiff-Appellee,                     Court for the Northern District of
                                            Indiana, South Bend Division
      v.
                                            No. 3:04cr0022AS
WILLIAM E. ZIEGLER,
     Defendant-Appellant.                   Allen Sharp,
                                            Judge.

                                    ORDER

       William Ziegler pleaded guilty to knowingly transmitting child pornography
by computer, 18 U.S.C. § 2252(a)(1), and knowingly possessing child pornography,
id. § 2252(a)(5)(B). After the presentence investigation report was prepared, Ziegler
objected to the proposed guideline sentence, citing Blakely v. Washington, 124 S.
Ct. 2531 (2004), and United States v. Booker, 375 F.3d 508 (7th Cir. 2004). The
district court applied the sentencing guidelines as if they were mandatory and



      *
        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. 04-3967                                                                      Page 2

sentenced Ziegler to 84 months’ imprisonment—a term in the middle of the
calculated range of 78 to 97 months.

       On appeal Ziegler argues that his sentence is erroneous under United States
v. Booker, 125 S. Ct. 738 (2005), decided about two months after he was sentenced.
As the government concedes, Ziegler is correct; the sentence is erroneous because
the district court mistakenly believed that adherence to the guidelines was
mandatory. 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). And because he preserved the
argument with his objection in the district court, Ziegler urges us to vacate his
sentence, arguing that the government cannot meet its burden of demonstrating
that the error was harmless. See United States v. Schlifer, 403 F.3d 849, 854 (7th
Cir. 2005); see also 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, again correctly, that the record is
insufficient to assure us that Ziegler was not prejudiced by the district court’s error.
Because we cannot deem the error harmless, the sentence is VACATED and the
case REMANDED for resentencing in light of Booker.
