                               UNPUBLISHED ORDER
                            Not to be cited per Circuit Rule 53




              United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                                   January 27, 2006

                                         Before

                     Hon. JOHN L. COFFEY, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-3580
                                                  Appeal from the United States
UNITED STATES OF AMERICA,                         District Court for the Eastern District
           Plaintiff-Appellee,                    of Wisconsin.
    v.
                                                  No. 04 CR 70
JOSE R. NIEVES-GONZALEZ,
             Defendant-                           J. P. Stadtmueller, Judge.
Appellant.


                                      ORDER

       After pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a), the
district court sentenced Jose Nieves-Gonzalez to 48 months imprisonment. On May
17, 2005, while retaining jurisdiction, we ordered a limited remand of the appellant’s
sentence to the district court under United States v. Paladino, 401 F.3d 471 (7th Cir.
2005). The purpose of the limited remand was to permit the district court to inform us
whether it would have imposed the same sentence knowing that the United States
Sentencing Guidelines are merely advisory.

       The district court held a re-sentencing hearing on September 30, 2005. In an
“Amended Judgment” that day, it amended Nieves-Gonzalez’s sentence to a 40 month
term of imprisonment. As we explained in United States v. Duncan, 427 F.3d 464, 465
(7th Cir. 2005), the district court went beyond the scope of its jurisdiction on remand
when it re-sentenced the defendant. Therefore, the district court’s amended judgment

No. 04-3580                                                                   Page 2


of September 30, 2005 is VACATED. We construe the amended judgement as the
district court’s indication that it would have sentenced the defendant differently had
it known that the Guidelines are advisory, and therefore the case is REMANDED to
the district court for the district court to re-sentence the defendant.
