USA v. Scott Njo, No. 10-3016 (7th Cir. 2011)

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2 1 NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals T o For the Seventh Circuit Chicago, Illinois 60604 b e Submitted March 10, 2011 Decided March 17, 2011 Before FRANK H. EASTERBROOK, Chief Judge DIANE S. SYKES, Circuit Judge JOHN DANIEL TINDER, Circuit Judge c i t e d o n l y i n Appeal from the United a States District Courtcfor the Northern District ofcIllinois, Western Division. o r No. 07 CR 50036 d Frederick J. Kapala, a Judge. n c e No. 10-3016 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SCOTT NJOS, Defendant-Appellant. w i t The sentence imposed following our remand of December 30, 2009, exceeds the h Guideline range calculated by the district judge. Relying on 18 U.S.C. §3742(g)(2), defendant contends that the sentence therefore is invalid. In Pepper v. United States, No. F 09 6822 (U.S. Mar. 2, 2011), slip op. 15 20, the Supreme Court concluded that e §3742(g)(2) violates the Constitution by setting limits on district judges sentencing d discretion in the absence of findings made by a jury (or the judge in a bench trial), or a . Order R . This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f). A p p . P No. 10-3016 Page 2 defendant s waiver of his rights under the sixth amendment. This statute therefore is not a basis to upset the sentence that the district judge concluded is appropriate here. Because defendant does not contend that his sentence is unreasonable, apart from his reliance on §3742(g)(2), the judgment of the district court is AFFIRMED.

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