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

No. 03-3681
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

PAUL A. HENNINGSEN,
                                          Defendant-Appellant.

                         ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 03 CR 10—J.P. Stadtmueller, Judge.
                         ____________
  ARGUED SEPTEMBER 13, 2004—DECIDED MARCH 29, 2005
                    ____________



  Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
  BAUER, Circuit Judge. Paul A. Henningsen is a former
Milwaukee alderman who was convicted of four counts of
mail fraud on June 20, 2003, for diverting campaign funds
for personal use. At the sentencing hearing, the district
judge made findings of fact that increased Henningsen’s
base offense level under the Federal Sentencing Guidelines
(“Guidelines”). These findings were in connection with (1)
the amount of loss, pursuant to § 2B1.1 of the Guidelines,
(2) the number of victims, pursuant to § 2B1.1(b)(2)(B), and
(3) obstruction of justice, pursuant to § 3C1.1. All told, these
2                                              No. 03-3681

findings elevated Henningsen’s base offense level 12 points
to a total offense level of 20, which under the Guidelines,
carried a sentencing range of 33-41 months. The district
judge sentenced Henningsen to 33 months for each of the
four counts, to be served concurrently.
  Henningsen did not raise a Sixth Amendment challenge
to the district judge’s factual findings at sentencing. The
sentence was imposed, and Henningsen appealed. Prior to
oral argument on Henningsen’s appeal, the Supreme Court
issued Blakely v. Washington, 124 S.Ct. 2531 (2004), which
held that imposition of sentencing enhancements under the
state of Washington’s mandatory guidelines system premised
upon facts neither admitted by the defendant nor found by
the jury violated the Sixth Amendment. This court followed
with United States v. Booker, 375 F.3d 508 (7th Cir. 2004),
which held Blakely applicable to the Federal Sentencing
Guidelines. Pursuant to these decisions, Henningsen chal-
lenged the constitutionality of his sentence in a Rule 28(j)
letter and at oral argument. In addition, on September 3,
2004, Henningsen filed a motion for stay of sentence and
bail pending appeal.
  On October 15, 2004, we affirmed the decision of the
district court on the merits, but vacated the sentence and
remanded the case to the district court for resentencing. We
stayed our mandate, however, pending the outcome of
Booker on certiorari to the Supreme Court, and granted the
parties leave to submit memoranda on the issue within 14
days of the Court’s decision. On January 12, 2005, the
Supreme Court issued a decision in United States v. Booker,
125 S.Ct. 738 (2005), which affirmed this court’s decision,
but also rendered the Guidelines non-binding. Both parties
then submitted briefs with respect to the constitutionality
of Henningsen’s sentence in light of the Court’s ruling.
No. 03-3681                                                 3

                      I. Discussion
  Henningsen claims that his constitutional right to a trial
by jury was violated when the district court made findings
of fact that compelled the judge to impose enhancements on
his sentence. Henningsen’s failure to challenge the con-
stitutionality of the enhancements below means that his
Sixth Amendment claim was forfeited. Therefore, we review
for plain error, consistent with FED. R. CRIM. P. 52(b).
United States v. Olano, 507 U.S. 725, 732 (1993); see also
United States v. Cotton, 535 U.S. 625, 631 (2002); United
States v. Paladino, 2005 WL 435430, at *7 (7th Cir. 2005);
United States v. Ottersburg, 76 F.3d 137, 138 (7th Cir. 1996).
The Supreme Court has ruled that an appellate court can
correct an error that the defendant failed to raise below
only when there was (1) error, (2) that is plain, and (3) that
affects substantial rights. Olano, 507 U.S. at 732; see also
Paladino, 2005 WL 435430, at *7. If these conditions are
met, an appellate court may exercise its discretion to notice
a forfeited error if (4) the error seriously affects the fair-
ness, integrity, or public reputation of the proceedings. Id.
  The government does not contest that the first two prongs
of the plain error test are met, but we will run through
them quickly. In Booker, the Supreme Court reaffirmed its
ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), hold-
ing, “Any fact (other than a prior conviction) which is nec-
essary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to
a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756.
The Court also severed the mandatory language of the
Federal Sentencing Guidelines, thereby rendering them ad-
visory. Id. at 764. The enhancements imposed upon
Henningsen’s sentence were erroneous under Booker be-
cause they were driven by findings of fact that the judge
was compelled by the Guidelines to make, which increased
the sentence beyond what the jury’s findings of fact alone
4                                                 No. 03-3681

would have allowed. Furthermore, the error was plain be-
cause the law at the time of trial was settled and it is clearly
contrary to the rule established in Booker, the law at the
time of appeal. Johnson v. United States, 520 U.S. 461, 468
(1997).
  Under the third prong of the plain error test, the error
must have affected the defendant’s substantial rights. Olano,
507 U.S. at 734; see also Paladino, 2005 WL 435430, at *7.
In all but a few narrow circumstances, courts have inter-
preted this to mean that the error “must have affected the
outcome of the district court’s proceedings.” Olano, 507 U.S.
at 734; see also Paladino, 2005 WL 435430, at *8; Johnson,
520 U.S. at 468-89. The defendant bears the burden of per-
suasion on this issue. Olano, 507 U.S. at 734. The govern-
ment argues that Henningsen has not carried that burden
because he can point to no place in the record where the
judge expressly stated that he would have issued a lesser
sentence had he not been bound by the Guidelines.
   We recently held in Paladino that the only way to deter-
mine whether a Booker error prejudiced a sentencing out-
come is to ask the district judge. Paladino, 2005
WL 435430, at *10. Therefore, we order a limited remand to
give the district judge an opportunity to say whether he
would impose his original sentence had the Guidelines been
merely advisory. The district judge should solicit the views
of counsel in reaching his decision, but Henningsen need
not be present at this stage. Id. During this limited remand,
we retain jurisdiction of the appeal. Id. If the district judge
decides that he would reimpose the original sentence, he
should explain his decision in the record, and we will affirm
if the sentence is reasonable. Id. If, on the other hand, the
district judge tells us that he would lower the sentence
in light of Booker, we will vacate the original sentence and
remand for resentencing with Henningsen present. Id.
  In the event that the third prong of the plain error test is
satisfied, we then will decide whether the sentencing error
No. 03-3681                                                  5

“seriously affect[ed] the fairness, integrity, or public repu-
tation of the proceedings.” Paladino, 2005 WL 435430, at *7;
see also Johnson, 520 U.S. at 467. The government argues
that Henningsen received a fair sentence consistent with a
long-standing, federally approved practice, and that imposi-
tion of that sentence, while erroneous in hindsight, is not so
egregious as to threaten the fairness of the proceedings. We
were not receptive to this argument when the government
made it in Paladino, 2005 WL 435430, at *9, and we con-
tinue to view it with skepticism. Although we cannot know
if there was error, or the extent of that error, until the
district judge expresses himself, this court recognizes that
“the entry of an illegal sentence is a serious error routinely
corrected on plain-error review.” Id. at *9; see also United
States v. Pawlinski, 374 F.3d 536, 540-41 (7th Cir. 2004).
  As a final matter, Henningsen requests that we grant his
motion for a stay of the balance of his sentence and release
him from custody on bail pending the resolution of his ap-
peal. In order to succeed on this motion, Henningsen must
show that his appeal is likely to result in a sentence which
would be less than the total of the time he has already
served plus the expected duration of his appeal. 18 U.S.C.
§ 3143(b)(1)(B)(iv). Henningsen has served approximately
17 months of his 33-month sentence. Since Henningsen’s
appeal cannot be expected to take 16 more months, and be-
cause it is not clear whether the district court will decide to
resentence in light of Booker, the motion is denied.


                      II. Conclusion
  We hereby direct a limited REMAND of Henningsen’s
sentence pursuant to Paladino and the procedure set forth
above. In the meantime, we retain appellate jurisdiction.
Henningsen’s motion for stay of sentence and bail pending
appeal is DENIED.
6                                         No. 03-3681

A true Copy:
      Teste:

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




               USCA-02-C-0072—3-29-05
