United States v. Sobitan, Babajide

ORDER Babajide Sobitan was convicted of attempting to reenter the United States without authorization after having been deported, 8 U.S.C. § 1326(a), and was sentenced to 97 months’ imprisonment. He argues under United States v. Booker, —U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the district court improperly treated the sentencing guidelines as mandatory and impermissibly increased his offense level based on facts found only by a preponderance of the evidence. Sobitan preserved these arguments by objecting at sentencing, and thus our review is plenary. United States v. Schlifer, 403 F.3d 849, 854 (7th Cir.2005); United States v. Hollis, 230 F.3d 955, 958-59 (7th Cir.2000); United States v. Paz, 405 F.3d 946, 948-49 (11th Cir.2005). Thus we must vacate Sobitan’s sentence unless the government can establish that the error was harmless, Schlifer, 403 F.3d at 854, a burden that the government concedes it cannot meet here. Accordingly, we VACATE Sobitan’s sentence and REMAND for resentencing in light of Booker. See id.