USA v. Marcus Welton

Filing 2

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 May 28, 2010 Before FRANK H. EASTERBROOK , Chief Judge WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-3799 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARCUS L. WELTON, Defendant-Appellant. On Remand from the Supreme Court of the United States. Order Our prior opinion, 583 F.3d 494 (7th Cir. 2009), affirmed Welton's sentence after concluding that the principle of Kimbrough v. United States, 552 U.S. 85 (2007), does not apply to the career-offender Guideline, U.S.S.G. 4B1.1. While Welton's petition for certiorari was pending, we overruled the panel's opinion in this case. United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc). The Supreme Court then granted Welton's petition and remanded with instructions to reconsider in light of Corner. No. 09-8367 (U.S. Mar. 20, 2010). Welton contended in the district court that the principle of Kimbrough applies to 4B1.1, and Corner holds that this position is correct. The district court erred in thinking otherwise (though the district judge is not responsible for this error, which was based on earlier decisions that Corner overruled). In a post-remand filing under Circuit Rule No. 08-3799 Page 2 54, the United States contends that the judge's error was harmless. But the burden of demonstrating harmless error is on the prosecutor, and it is not evident to us that the district judge was determined to impose the same sentence without regard to the effect of Kimbrough on 4B1.1. A remand for resentencing is the best way to find out. If, as the United States contends, Corner does not affect Welton's sentence, the district judge has only to say so. But if it does affect the exercise of discretion in sentencing, Welton is entitled to the benefit. Welton's sentence is vacated, and the case is remanded for resentencing consistent with Kimbrough and Corner.

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