United States v. Tek Ngo, 406 F.3d 839 (7th Cir. 2005). · Go Syfert
United States v. Tek Ngo, 406 F.3d 839 (7th Cir. 2005). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2008 · …based upon impermissible fact-finding.
74 citation events (74 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Dantzler (ca2, 2014-11-14)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Dantzler
2d Cir. · 2014 · confidence medium
See, e.g., United States v. Boykin, 669 F.3d 467, 470-71 (4th Cir.2012) (finding plain error in the district court's ''reli[ance] on the PSR's factual details of Boykin’s 1980 shootings to make the judicial finding that the two shootings occurred on separate occasions for ACCA purposes” because "there is no indication in the PSR . itself that the information therein came from Shepard-approved sources,” and "the factual details of the encounter are not typically found in Shepard-approved sources”); United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir.2010) ("Based on Shepard , there is…
discussed Cited as authority (rule) State v. Mallory
Or. Ct. App. · 2007 · confidence medium
See, e.g., U.S. v. Jones, 453 F3d 777, 780 (6th Cir), cert den,_US_, 127 S Ct 611 , 166 L Ed 2d 453 (2006) (holding that a criminal complaint “is a type of record that a district court can properly rely on in determining the nature of predicate offenses, consistent with the standards of Shepard”); U.S. v. Taylor, 413 F3d 1146, 1157-58 (10th Cir 2005) (remanding for determination, in light of approved sources, whether predicate offenses arose from same occasion); U.S. v. Ngo, 406 F3d 839, 842 (7th Cir 2005) (District Court may rely only on “those findings traceable to a prior judicial rec…
discussed Cited as authority (rule) United States v. Guzman, Allan R.
7th Cir. · 2007 · confidence medium
Guzman did not challenge the drug-quantity calculation in the district court, so we cannot analyze his forfeited claim of error unless we find (1) an error, (2) that is plain, and (3) that affects Guzman’s substantial rights; even then, we will not order a remand unless the error “seriously affects the fairness, integrity, or public reputation” of the proceedings or results in a “miscarriage of justice.” United States v. Ngo, 406 F.3d 839, 844 (7th Cir.2005) (citations and quotation marks omitted).
cited Cited as authority (rule) United States v. Walker, Raymond M.
7th Cir. · 2006 · confidence medium
See also United States v. Cannon, 429 F.3d 1158, 1160-61 (7th Cir.2005); United States v. Tek Ngo, 406 F.3d 839, 843-44 (7th Cir.2005).
cited Cited as authority (rule) United States v. Van Sach, Joseph
7th Cir. · 2006 · confidence medium
See United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006); United States v. Ngo, 406 F.3d 839, 843 (7th Cir. 2005); United States v. Williams, 410 F.3d 397, 401 (7th Cir. 2005).
cited Cited as authority (rule) United States v. Joseph Van Sach
7th Cir. · 2006 · confidence medium
See United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006); United States v. Ngo, 406 F.3d 839, 843 (7th Cir.2005); United States v. Williams, 410 F.3d 397, 401 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Clarence Jones, Jr.
6th Cir. · 2006 · confidence medium
United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir.2005) (reversing and remanding for new sentence where District Court relied on pre-sentence report to determine prior offenses constituted multiple convictions under the ACCA); United States v. Ngo, 406 F.3d 839, 842 (7th Cir.2005) (District Court may rely only on “those findings traceable to a prior judicial record of conclusive significance” to determine whether prior convictions are related to one another).
discussed Cited as authority (rule) United States v. Jones
6th Cir. · 2006 · confidence medium
United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005) (reversing and remanding for new sentence where District Court relied on pre-sentence report to determine prior offenses constituted multiple convictions under the ACCA); United States v. Ngo, 406 F.3d 839, 842 (7th Cir. 2005) (District Court may rely only on “those findings traceable to a prior judicial record of conclusive significance” to determine whether prior convictions are related to one another).
discussed Cited as authority (rule) United States v. Barbosa, Vito
7th Cir. · 2006 · confidence medium
See Shepard, 125 S.Ct. at 1262-63 (plurality opinion); id. at 1269-70 (O’Connor, J., dissenting); see also United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006); United States v. Williams, 410 F.3d 397, 402 (7th Cir.2005); United States v. Ngo, 406 F.3d 839, 842 (7th Cir.2005).
cited Cited as authority (rule) United States v. Pophal, Keith A.
7th Cir. · 2006 · confidence medium
See, e.g., United States v. Pittman, 418 F.3d 704, 709 (7th Cir.2005); Williams, 410 F.3d at 402 ; United States v. Tek Ngo, 406 F.3d 839, 842-43 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Wiggins, Ronald
7th Cir. · 2005 · confidence medium
See Almendarez-Torres, *845 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (fact of a prior conviction is a sentencing factor that need not be proven to a jury beyond a reasonable doubt); see also United States v. Shepard, — U.S.-,-, 125 S.Ct. 1254, 1264 , 161 L.Ed.2d 205 (2005) (Thomas, J. concurring) (pointing out that Court has not yet reconsidered Almendarez-Torres); United States v. Ngo, 406 F.3d 839, 842 (7th Cir.2005) (explaining that Almendarez-Torres exception for prior convictions survives Shepard).
cited Cited as authority (rule) United States v. Taylor
10th Cir. · 2005 · confidence medium
United States v. Ngo, 406 F.3d 839, 842-43 (7th Cir.2005) (reviewing burglaries ten days apart).
cited Cited as authority (rule) United States v. Pittman, Korvell D.
7th Cir. · 2005 · confidence medium
United States v. Booker, 125 S.Ct. 738, 756 (2005); United States v. Ngo, 2005 WL 1023034, at *2-4 (7th Cir. May 3, 2005).
cited Cited as authority (rule) United States v. Korvell Dennis Pittman
7th Cir. · 2005 · confidence medium
United States v. Booker, — U.S. -, 125 S.Ct. 738, 756 , 160 L.Ed.2d 621 (2005); United States v. Ngo, 406 F.3d 839, 841-44 (7th Cir.2005).
examined Cited as authority (rule) United States v. Vallejo, Jose (3×) also: Cited "see, e.g."
7th Cir. · 2005 · confidence medium
Id. at 842-43.
discussed Cited as authority (rule) United States v. Perry, Robert (2×)
7th Cir. · 2005 · confidence medium
But the fact of a defendant’s prior conviction has been held to fall outside the requirement that facts be proven to a jury, see Almendarez-Torres v. United States, 523 U.S. 224, 246 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), and Booker did not disturb this exception, see United States v. Ngo, 406 F.3d 839, 841-42 (7th Cir.2005).
discussed Cited "see" United States v. Godin
1st Cir. · 2007 · signal: see · confidence high
See United States v. Ngo, 406 F.3d 839 , 843 n. 1 (7th Cir.2005); see also United States v. Martins, 413 F.3d 139, 152 (1st Cir.), cert. denied, 546 U.S. 1011 , 126 S.Ct. 644 , 163 L.Ed.2d 520 (2005).
discussed Cited "see" United States v. Peters, Ryan
7th Cir. · 2006 · signal: see · confidence high
See United States v. Ngo, 406 F.3d 839 , 843 n.1 (7th Cir. 2005) (distinguishing between the use of prior convictions to increase guidelines ranges and the use of prior convictions to increase statutory maximums, noting No. 05-2554 3 that the former no longer raise constitutional concerns because the remedial opinion in Booker rendered the guidelines advisory).
discussed Cited "see" United States v. Ryan J. Peters
7th Cir. · 2006 · signal: see · confidence high
See United States v. Ngo, 406 F.3d 839 , 843 n. 1 (7th Cir.2005) (distinguishing between the use of prior convictions to increase guidelines ranges and the use of prior convictions to increase statutory máximums, noting that the former no longer raise constitutional concerns because the remedial opinion in Booker rendered the guidelines advisory).
cited Cited "see" United States v. Curtis Graves
7th Cir. · 2005 · signal: see · confidence high
See United States v. Ngo, 406 F.3d 839, 842-43 (7th Cir.2005).
cited Cited "see" United States v. Graves, Curtis
7th Cir. · 2005 · signal: see · confidence high
See United States v. Ngo, 406 F.3d 839, 842-43 (7th Cir. 2005).
cited Cited "see" United States v. Freddy Rosas
7th Cir. · 2005 · signal: see · confidence high
See United States v. Ngo, 406 F.3d 839, 842 (7th Cir.2005).
discussed Cited "see, e.g." United States v. Stephen McCall
3rd Cir. · 2011 · signal: see also · confidence medium
See also United States v. Ngo, 406 F.3d 839, 843 (7th Cir.2005) (stating that, under Shepard , the District Court may consider a sentencing transcript, because it has “ ‘the conclusive significance’ of a prior judicial record”); United States v. Garcia, 470 F.3d 1143 , 1148 n. 6 (5th Cir.2006) (considering sentencing transcript).
discussed Cited "see, e.g." United States v. Hunter
N.D. Iowa · 2006 · signal: see, e.g. · confidence medium
Shepard, 544 U.S. at 26 , 125 S.Ct. 1254 ; see, e.g., United States v. Ngo, 406 F.3d 839, 843 (7th Cir. 2005) (stating that, under Shepard, the district court may consider a sentencing transcript, because it has “ ‘the conclusive significance’ of a prior judicial record”); see also United States v. Garcia, 470 F.3d 1143 , 1148 n. 6 (5th Cir.2006) (considering sentencing transcript); United States v. Reeves, No. CR-05-47-B-W, 2006 WL 1891853 , at *2 n. 8, 2006 U.S. Dist.
discussed Cited "see, e.g." United States v. Jasy Von Brown, AKA Jasy Drags Wolf
9th Cir. · 2005 · signal: see also · confidence medium
See Shepard v. United States, -U.S. -, -, 125 S.Ct. 1254, 1262-63 , 161 L.Ed.2d 205 (2005) (plurality) (holding that such findings would raise "serious risks of unconstitutionality”); id. at 1264 (Thomas, 1., concurring in part and concurring in the judgment) (arguing that "broadening the evidence judges may consider when finding facts under Taylor ... would not give rise to constitutional doubt, as the plurality believes,” but to "constitutional error”); see also United States v. Ngo, 406 F.3d 839, 843 (7th Cir.2005) (holding that the court's finding that the defendant’s prior convict…
discussed Cited "see, e.g." United States v. Von Brown
9th Cir. · 2005 · signal: see also · confidence medium
We have held that “where the district court did not treat the sentencing guidelines as advisory but the defendant’s sen- dence judges may consider when finding facts under Taylor . . . would not give rise to constitutional doubt, as the plurality believes,” but to “consti- tutional error”); see also United States v. Ngo, 406 F.3d 839, 843 (7th Cir. 2005) (holding that the court’s finding that the defendant’s prior convic- tions were not part of a common scheme or plan violated the Sixth Amendment principles articulated in Shepard); United States v. Washing- ton, 404 F.3d 834, 841…
discussed Cited "see, e.g." United States v. Keith McGee Thomas King, Larone Brim, Harold McKinzie Tony Banks, Rabboni Smith, John Ector, and Flozell McGee
7th Cir. · 2005 · signal: see also · confidence low
See also United States v. Ngo, 406 F.3d 839 (7th Cir.2005) (ordering a limited remand where district court considered sources that were not authorized under Shepard in finding that defendant was a career offender).
discussed Cited "see, e.g." United States v. McGee, Keith
7th Cir. · 2005 · signal: see also · confidence low
See also United States v. Ngo, 2005 WL 1023034 (7th Cir. May 3, 2005) (ordering a limited remand where district court considered sources that were not authorized under Shepard in finding that defendant was a career offender).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Tek NGO, Defendant-Appellant
04-2662.
Court of Appeals for the Seventh Circuit.
May 3, 2005.
406 F.3d 839
2005 U.S. App. LEXIS 7599
2005 WL 1023034
Timothy M. O’Shea (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee., Alan G. Habermehl (argued), Kelly & Habermehl, Madison, WI, for Defendants Appellant.
Cudahy, Wood, Sykes.
Cited by 35 opinions  |  Published
CUDAHY, Circuit Judge.

Tek Ngo appeals his sentence of 210 months on the ground that the district court violated the Sixth Amendment by sentencing him as a career offender without presenting the facts underlying his prior convictions to a jury. He also argues, and the government concedes, that in light of the Supreme Court’s decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court erred in applying the guidelines under the prior mandatory sentencing scheme. Because the district court engaged in factfinding beyond what is permitted under the exception for “the fact of a prior conviction,” we remand the case pursuant to United States v. Paladino, 401 F.3d 471, 484 (7th Cir.2005), for the limited purpose of determining whether the district court’s choice of sentence would have been different had it known that the application of the sentencing guidelines was not mandatory.

I. Background

In April 2004 a jury found Ngo guilty of conspiracy to distribute and to possess with intent to distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and distributing methamphetamine, id. § 841(a)(1). The presentence investigation report (PSR), prepared using the November 2003 guidelines, recommended a base offense level of 32 based on the quantity of drugs encompassed by Ngo’s relevant conduct. See U.S.S.G. § 2D1.1(c)(4). The[*841] PSR further recommended that Ngo be sentenced as a career offender under U.S.S.G. § 4B1.1, based upon two prior convictions for armed robbery.

Ngo filed several written objections to the PSR. He first argued that he was not a career offender because his two armed robbery convictions were “related” and thus counted as just one prior conviction instead of the two needed to trigger the career offender guideline. See U.S.S.G. § 4A1.2(a)(2) (“Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence.”); id., cmt. n. 3 (defining “related” cases); see also U.S.S.G. § 4B1.2(c) (“prior convictions” under § 4B1.2 include only those counted separately under § 4A1.1 and § 4A1.2). Next he argued that his criminal history category was III, not IV, if the career offender guideline did not apply. Ngo also objected to the drug quantity calculation in the PSR on the ground that it was based on information from unreliable sources. He did not advance any argument based on the Sixth Amendment or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

At sentencing on June 23, 2004, the district court rejected the recommendation in the PSR and calculated a drug quantity that yielded a base offense level of 28 under § 2D1.1(e)(4). But this conclusion ultimately did not factor into Ngo’s sentence because the court found that Ngo’s prior armed robbery convictions were not consolidated for sentencing or part of a common scheme or plan and thus sentenced him as a career offender. As a career offender, Ngo’s total offense level was 32 and his criminal history category a VI, see U.S.S.G. § 4B1.1, resulting in a guideline range of 210 to 240 months. The court sentenced Ngo to 210 months’ imprisonment, three years of supervised release, and $200 in criminal assessments. The court noted that a sentence at the bottom of the guideline range was “sufficient to hold defendant accountable for his criminal actions and to protect the community.” 1

In his opening appellate brief, Ngo argued that under Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 375 F.3d 508 (7th Cir.2004), his sentence violates the Sixth Amendment because the district court made factual findings by a preponderance of the evidence that increased his guideline range. The parties then filed supplemental briefs after the Supreme Court decided Booker. In his supplemental brief, Ngo argues that his sentence violates the Sixth Amendment because the district court’s determination that his prior convictions are “unrelated,” see U.S.S.G. § 4A.1.2, cmt. n. 3, encompassed more than the “fact of a prior conviction” and thus exceeded the judicial factfinding exception for recidivism recognized in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and preserved in Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. Ngo argues that even absent a Sixth Amendment violation he must be' resen-teneed in light of the remedial opinion in Booker. The government maintains that Ngo’s Sixth Amendment rights were not violated by the application of the career offender guideline but concedes that his sentence is erroneous under Booker because the guidelines are no longer mandatory. The government urges this court to review for plain error, but Ngo challenges the contention that he forfeited his Booker argument and seeks plenary review of his sentence. He argues in the alternative that resentencing is required because his sentence was plainly erroneous.

II. Analysis

Before the Supreme Court’s recent decision in Shepard v. United States, — U.S.[*842] —, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), Ngo’s Sixth Amendment argument would have lacked merit. Neither the Supreme Court’s decision in Blakely nor this court’s opinion in Booker disturbed the principle that the “fact of a prior conviction” falls outside the Apprendi rule that facts increasing a sentence beyond the otherwise-applicable statutory maximum must be proved to a jury beyond a reasonable doubt. See United States v. Pittman, 388 F.3d 1104, 1109 (7th Cir.2004). Accordingly, in Pittman we held that applying § 4B1.1 did not violate Blakely as interpreted by this court in Booker where the district court found by a preponderance of the evidence that the defendant was at least 18 years old at the time of his offense and that he had two prior convictions for drug trafficking. Id. In Booker, the Court again preserved the Almendarez-Torres exception for “the fact of a prior conviction.” Booker, 125 S.Ct. at 758; see Paladino, 401 F.3d at 480; United States v. Barnett, 398 F.3d 516, 525 (6th Cir.2005); United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.2005).

Ngo argues that the district court’s conclusion that he is a career offender entailed finding facts beyond the “fact of a prior conviction,” namely, that his prior convictions were not consolidated for sentencing or part of a common scheme or plan. This court rejected a similar argument in United States v. Morris, 293 F.3d 1010 (7th Cir.2002). In Morris, a defendant who was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), argued that his sentence was unconstitutional under Apprendi because the government did not prove beyond a reasonable doubt that his prior convictions had been committed on separate occasions as required by the statute. See 18 U.S.C. § 924(e)(1). This court rejected the argument, noting that there was no precedent for “parsing out the recidivism inquiry.” Id. at 1012.

Recently, however, the Supreme Court suggested that it may indeed be appropriate to “parse out” the recidivism inquiry, at least under the ACCA. See Shepard, 125 S.Ct. at 1257. In Shepard the question before the Court was whether a sentencing court can look to police reports or complaint applications to determine whether a prior guilty plea necessarily admitted a “generic” burglary (burglary of a building or structure) for the purposes of sentencing under the ACCA. Id. The Court declined to extend the scope of evidence that a judge already could consider under Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and held that a sentencing court is limited to examining the statute of conviction, charging document, plea agreement, plea transcript, and “any explicit factual finding by the trial judge to which the defendant assented.” Id.

The Almendarez-Torres exception for prior convictions still stands after Shepard but the Court signaled that the purview of the exception is quite narrow. A plurality of the Court concluded that the disputed fact in Shepard — whether a prior conviction was for “generic” burglary — was “too removed from the conclusive significance of a prior judicial record ... to say that Almendarez-Toms clearly authorizes a judge to resolve the dispute.” Id. at 1262. This language suggests that the recidivism exception exempts only those findings traceable to a prior judicial record of “conclusive significance.” Otherwise, Sixth Amendment concerns arise.

The government does not contest that the district court made factual findings in Ngo’s case. Indeed, we have held that “whether a case has been ‘consolidated’ for trial or sentencing is a matter of fact.” United States v. Buford, 201 F.3d 937, 942 (7th Cir.2000). Likewise, we have suggested that whether prior crimes are part[*843] of a common scheme is also a fact question. United States v. Brown, 209 F.3d 1020, 1023 (7th Cir.2000) (the “determination that certain prior sentences are not related is a factual one”). Even after Booker, however, we have not scrutinized factual findings of this sort because they have been assumed to fall within the Almendarez-Torres exception, and the government’s position is that the sentencing judge is still privileged to make such findings. But after Shepard, the question arises whether the district court exceeded the scope of the prior conviction exception by deciding these facts on its own.

The finding that Ngo’s crimes were not consolidated falls within the narrow parameters permitted by Shepard, i.e., those findings that can be made by resorting only to information with the “conclusive significance” of a prior judicial record. We have held that a sentencing judge may not conclude that consolidation occurred unless there is a formal order of consolidation or “a showing on the record of the sentencing hearing that the sentencing judge considered the cases sufficiently related.” United States v. Best, 250 F.3d 1084, 1095 (7th Cir.2001) (citation omitted and emphasis added). Our precedent accordingly requires that a district court decide a disputed consolidation question by resorting to a formal order or a sentencing transcript, both sources that presumably have “the conclusive significance of a prior judicial record” as required by Shepard. No Sixth Amendment problem results because a district court must effectively conclude that prior cases are not consolidated unless the defendant produces the kind of evidence that could be considered under Shepard.

However, a similar analysis does not apply with regard to the district court’s finding that Ngo’s crimes were not part of a common scheme or plan. Crimes are considered part of joint scheme when they were jointly planned or when one crime necessarily entails the commission of the other. Id.; United States v. Joy, 192 F.3d 761, 771 (7th Cir.1999). In Ngo’s case, the district court looked to the fact that the robberies were committed 10 days apart in deciding that they were not jointly planned, concluding that the elapsed time between the crimes outweighed the fact that the crimes were “committed the same way.” The court also relied on the “different nature of the commercial establishments” that Ngo burglarized. This.latter finding — the type of establishment that was burglarized — is nearly identical to the one that the Court considered in Shepard. See 125 S.Ct. at 1257-58. And because it was determined by resorting to sources of information without the “conclusive significance” of a prior judicial record, it was not “clearly authorized” by Almendarez-Torres. Id. at 1262. Likewise the district court’s factual finding that Ngo’s prior convictions. were not part of a common scheme or plan was not authorized by Almendarez-Torres, and because the finding was used to increase Ngo’s guideline range, his sentence violates the Sixth Amendment. [1]

Although the government maintains that Ngo’s sentence does not violate the Sixth Amendment, it concedes that the district court nevertheless committed error under[*844] Booker by sentencing Ngo under the now-defunct mandatory guidelines scheme. See, e.g., United States v. Schlifer, 403 F.3d 849 (7th Cir.2005). However, the distinction is of little import here, because we have decided that Ngo’s sentence is erroneous because it was based upon impermissible factfinding.

The government urges the court to review the sentence for plain error because Ngo forfeited his Booker argument by not making the appropriate objections in the district court. Indeed, Ngo did not make any objection relating to the district court’s authority to determine whether he was a career offender; he simply argued that the guideline should not apply. Ngo insists that any objection in the district court would have been frivolous given the state of the law before Blakely. This court’s recent decisions make clear, however, that a defendant who does not make a Sixth Amendment argument in the district court is entitled to have his sentence reviewed for plain error only. See United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); Paladino, 401 F.3d at 481.

Before an appellate court can correct forfeited error, there must be (1) error, (2) that is “plain” and (3) that affects substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir.2004). Even then, the court should not correct the error unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings, Stewart, 388 F.3d at 1079, |which is often taken to mean that the error effectuates a “miscarriage of justice,” Paladino, 401 F.3d at 481. The first two prongs are met in Ngo’s case. His sentence violates the Sixth Amendment because the court found facts without a jury and used them to increase Ngo’s guideline range. And as the parties agree, the district court also erred by applying the guidelines in a mandatory fashion. The error is also “plain,” as it is “ ‘clearly contradictory to the law at the time of appeal.’ ” United States v. Noble, 246 F.3d 946, 955 (7th Cir.2001) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

Next, the sentencing error affected Ngo’s substantial rights if it was prejudicial, i.e., if the outcome would have been different without the error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Shearer, 379 F.3d 453, 456 (7th Cir.2004). In Paladino, we noted that determining whether the outcome would have differed is problematic without some indication from the district court that its choice of sentence was (or was not) affected by its belief that the guidelines were mandatory. In some cases the record will provide assurances that the sentencing judge did not impose a longer sentence because of the guidelines. See Paladino, 401 F.3d at 482-83; Lee, 399 F.3d at 866-67. This is not such a ease. Here, the district court sentenced Ngo to the lowest term available under the applicable guideline range and noted that his career offender status had “greatly increased” his sentence. Nothing in the record suggests that the district court would have imposed the same sentence had it known that it was not bound by the guidelines. Accordingly, we will retain jurisdiction over the case but order a Limited Remand to the district court in keeping with the procedure outlined in Paladino.

1

. The problem presented by Shepard arises in cases like Ngo's where sentencing occurred under the mandatory guidelines system, but it will not arise in future guidelines cases in light of Booker's remedial opinion. The Sixth Amendment implications of judicial factfinding have now been cured by Booker with respect to guidelines sentencing because the guidelines are no longer binding. But no such cure exists with respect to statutory enhancements — such as the one applied in Shepard —which mandate higher sentences and leave no discretion to the judge.