                                     UNPUBLISHED ORDER
                                  Not to be cited per Circuit Rule 53



                                               In the

                    United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604
                                   Submitted April 22, 2005
                                     Decided May 9, 2005

                                              Before

                         Hon. RICHARD A. POSNER, Circuit Judge

                         Hon. TERENCE T. EVANS, Circuit Judge

                         Hon. ANN CLAIRE WILLIAMS, Circuit Judge




No. 03-3078

UNITED STATES OF AMERICA,                               Appeal from the United States District
     Plaintiff-Appellee,                                Court for the Northern District of Illinois,
                                                        Eastern Division.
       v.
                                                        No. 00 CR 411
ELIZABETH R. ROACH,
     Defendant-Appellant.                               Matthew F. Kennelly,
                                                        Judge.

                                              ORDER

        This case comes to us on remand from the Supreme Court for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). Each party has filed a statement of position pursuant
to Circuit Rule 54.

       At Roach’s original sentencing hearing, the district court granted her motion for downward
departure based on diminished capacity pursuant to U.S.S.G. § 5K2.13. Absent the downward
No. 03-3078                                                                                           Page 2

departure, Roach would have been required to serve a minimum of 12 months in prison. Instead, the
district court sentenced Roach to five years of probation, six weeks of work release at the Salvation Army
Center, six weeks of home confinement with weekend electronic monitoring, and prohibited her from
obtaining credit cards without the court's prior permission. In vacating this sentence, we held that the
district court abused its discretion in granting the downward departure, stated that the sentencing guidelines
significantly limited the district court’s ability to fashion a sentence based on considerations such as Roach’s
undisputed diminished mental capacity, and remanded the case for resentencing. See United States v.
Roach, 296 F.3d 565, 573 (7th Cir. 2002).
          On remand, the district court specifically stated on the record that it felt that the low end of the
sentencing range was in far excess of what was warranted in this case, but resentenced according to the
guidelines setting aside its own personal opinion. After Booker and United States v. Paladino, 401 F.3d
471 (7th Cir. 2005), we now understand that the district court should have been free to fashion the very
sentence it intended to impose originally.

          In Paladino, we determined that sentencing errors under Booker were indeed errors that were
both plain and constituted a miscarriage of justice. 401 F.3d at 481-83. In contrast to Paladino,
however, after review of the record and the Rule 54 statements, we can be certain that the sentencing judge
in this case would have imposed a lighter sentence than dictated by the guidelines had he not thought himself
bound by the guidelines. As a result, we find that Roach was prejudiced by the illegal sentenced imposed
by the district court, and, therefore, has survived plain-error review outright making the limited remand
prescribed in Paladino unnecessary.

       Accordingly, Roach’s sentence is VACATED and the case is REMANDED for resentencing in
accordance with Booker.
