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

No. 03-3380
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                              v.

JOHN D. OHLINGER,
                                         Defendant-Appellant.

                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
           No. 02 CR 150—John C. Shabaz, Judge.
                        ____________
     ARGUED MAY 27, 2004—DECIDED AUGUST 2, 2004
                    ____________



  Before FLAUM, Chief Judge, and MANION and KANNE,
Circuit Judges.
  FLAUM, Chief Judge. In 2003, John Ohlinger pled guilty
to one count of transporting a visual depiction of a minor
engaged in sexually explicit conduct. Ohlinger was subse-
quently sentenced to 360 months’ imprisonment and he now
appeals this sentence. For the reasons stated herein, we
remand the case for resentencing.


                     I. BACKGROUND
  On October 6, 2001, John Ohlinger posted a message on
an Internet website stating that he was a “male PEDO truck
2                                               No. 03-3380

driver” and was seeking a “real PEDO female to share real
life experiences and travel with me.” Ohlinger posted
another message a week later stating, “I truly do love sex
with kids. But I also truly love sex with adult women
too . . . . I seek an adult female that has experienced it too
and would like to have a man that knows what it’s really all
about.” In Ohlinger’s online profile, he described himself as
a “trucker pedophile.”
  Four months later, Ohlinger’s messages were discovered
by law enforcement when Special Agent Eric Szatkowski of
the Wisconsin Department of Justice’s Division of Criminal
Investigations received a tip that he should log onto the
website. The agent, posing as a 31-year-old single mother
with a young daughter, responded to Ohlinger’s messages.
Ohlinger and the agent corresponded for several days, and
Ohlinger repeatedly asked to meet the supposed mother and
daughter. During this correspondence, Ohlinger also sent the
agent a photograph of a ten-year-old girl in a sexually
explicit pose. Ohlinger was eventually arrested when he
arrived at a truck stop in Racine, Wisconsin, hoping to meet
the mother and her daughter.
  In March 2003, Ohlinger pled guilty to one count of trans-
porting a visual depiction of a minor engaged in sexually
explicit conduct. In exchange, the government then dropped
its second charge against Ohlinger, which was for knowing
possession of more than two depictions of a minor engaged
in sexually explicit conduct. This count was based upon a
search of Ohlinger’s residence that the government con-
tends uncovered more than 1,131 images of child por-
nography.
  According to Ohlinger’s plea agreement, all of his relevant
conduct could be used to determine his sentence. Due to the
district judge’s finding that Ohlinger’s conduct was the
“most egregious, perhaps more so than any similar case” the
judge had seen, Ohlinger was sentenced to 360 months’
imprisonment. Ohlinger now appeals his sentence.
No. 03-3380                                               3

                     II. DISCUSSION
  Ohlinger contends that the district judge improperly ap-
plied the U.S. Sentencing Guidelines to determine his sen-
tence. First, Ohlinger argues that he should not have
received a sentence enhancement for his 1983 conviction for
committing a crime against a child under the age of 14.
Next, Ohlinger contends that the district judge erred by
upwardly departing from the Guidelines based upon the
judge’s finding that Ohlinger’s criminal history category
within the Guidelines underrepresented his criminality and
likelihood of recidivism.
  As this Court recently determined in United States v.
Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), the
Supreme Court’s decision in Blakely v. Washington, 2004
WL 1402697 (U.S. June 24, 2004), calls into doubt the con-
stitutionality of the U.S. Sentencing Guidelines. See also
United States v. Penaranda, 2004 WL 1551369 (2d Cir. July
12, 2004); United States v. Pineiro, 2004 WL 1543170 (5th
Cir. July 12, 2004); United States v. Montgomery, 2004 WL
1562904 (6th Cir. July 14, 2004) (Rehearing en Banc
Granted and Opinion Vacated July 19, 2004). Under Blakely
as interpreted in Booker, a defendant has the right to have
a jury decide factual issues that will increase the defen-
dant’s sentence. As Booker holds, the Guidelines’s contrary
assertion that a district judge may make such factual
determinations based upon the preponderance of the
evidence runs afoul of the Sixth Amendment. In this case,
the district judge made several factual findings and used
these findings to support sentence enhancements for
distributing pornographic images with the expectation of
receiving other images and engaging in a pattern of activity
involving the sexual abuse of minors. We therefore must
remand Ohlinger’s case to the district judge for re-
sentencing in light of Booker.
4                                            No. 03-3380

                    III. CONCLUSION
  Ohlinger’s sentence is VACATED and the case is REMANDED
for resentencing consistent with this Court’s opinion in
United States v. Booker, 2004 WL 1535858 (7th Cir. July 9,
2004).

A true Copy:
      Teste:

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




                   USCA-02-C-0072—8-2-04
