United States v. Padilla, Felipe

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4370

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FELIPE PADILLA,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 784—Samuel Der-Yeghiayan, Judge.

____________

ARGUED OCTOBER 29, 2007—DECIDED MARCH 31, 2008

____________

Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Felipe Padilla pleaded guilty to one

count of knowingly distributing 121.3 grams of a substance

containing cocaine base, in violation of 21 U.S.C.

§ 841(a)(1). After finding that the substance in question

was cocaine base in the form of crack, the district court

sentenced Padilla to 327 months’ imprisonment, a sentence

above the advisory guidelines sentence of 240 months.

Padilla now appeals his sentence, arguing that (1) the

district court improperly found the narcotics to be crack;

2 No. 06-4370

and (2) his sentence was unreasonable. We affirm the

district court’s finding on the drug type, but vacate and

remand for resentencing in light of the recent Supreme

Court decision in Kimbrough v. United States, 552 U.S. ___,

128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

I. Background

In the fall of 2002, Bureau of Alcohol, Tobacco and

Firearms (“ATF”) Special Agent David Gomez was on

assignment monitoring weapons and drug transactions

among Chicago gangs. On September 26, 2002, acting in an

undercover capacity, he participated in a drug deal with

Padilla, a cooperating individual (“CI”), and Adalberto

Santiago in the parking lot of a K-Mart on Chicago’s west

side. Santiago and Padilla were charged with conspiracy to

possess with intent to distribute cocaine base in the form of

crack cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C.

§ 2 (Count I), and knowingly distributing approximately

121.3 grams of mixtures containing cocaine base in the

form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

(Count II).

On April 18, 2005, Padilla filed a motion asking for an

evidentiary hearing to determine the nature of the con-

trolled substance. The district court denied the motion,

finding that such a hearing was unnecessary in light of the

fact that the “[i]ndictment in this case clearly inform[ed

Padilla] that the controlled substance that [he was] charged

with involves ‘approximately 121.3 grams of mixtures

containing cocaine base in the form of “crack,” a Schedule

II Narcotic Drug Controlled Substance.’ ” The court gave

Padilla until June 1, 2005 to file an additional motion

seeking the appointment of an independent expert to test

No. 06-4370 3

the drugs. Padilla filed no such motion. On January 4, 2006,

the government informed Padilla that the Cook County

Sheriff’s Police Department Laboratory had inadvertently

destroyed the narcotics related to Padilla’s case.

Padilla pleaded guilty in a blind plea to Count II of the

indictment on March 29, 2006. At the change of plea

hearing, Padilla admitted that he distributed 121.3 grams

of cocaine, but specifically did not admit that the substance

was cocaine base in the form of crack cocaine. At the

sentencing hearing on December 7, 2006, the government

introduced evidence through Agent Gomez concerning the

drug transaction on September 26, 2002. The district court,

finding that the drugs were cocaine base in the form of

crack, and that an upward departure from the sentencing

guidelines range was warranted, sentenced Padilla to 327

months’ imprisonment and ten years’ supervised release.

II. Discussion

On appeal, Padilla argues that (1) the government failed

to establish by a preponderance of the evidence that the

controlled substance was crack cocaine for sentencing

purposes; and (2) based on the advisory guideline range, a

sentence of 327 months was unreasonable. We address each

issue in turn.

A. The District Court’s Drug Type Finding

Padilla challenges whether the government met its

burden of proof that the substance involved in the deal was

cocaine base in the form of crack for sentencing purposes.

At sentencing after a guilty plea, the government has the

burden of proving drug type by a preponderance of the

4 No. 06-4370

evidence. United States v. Johnson, 200 F.3d 529, 537 (7th Cir.

2000). We review the district court’s finding of drug type

for clear error, and will reverse only if we are left with the

definite and firm conviction that a mistake was made. See

United States v. Wilson, 437 F.3d 616, 621 (7th Cir. 2006).

As we have held, “[a]ll crack is cocaine base but not all

cocaine base is crack.” United States v. Edwards, 397 F.3d

570, 571 (7th Cir. 2005). The term “cocaine base,” for

purposes of 21 U.S.C. § 841(b), borrows from the definition

contained in U.S.S.G. § 2D1.1, which defines “cocaine base”

as “crack.” U.S.S.G. § 2D1.1(c), Note D; see United States v.

Morris, 498 F.3d 634, 644 (7th Cir. 2007) (citing Edwards, 397

F.3d at 573-76). As we noted in Morris, “[t]his definition

distinguishes between both powder cocaine (cocaine

hydrochloride) and cocaine bases and also between crack

cocaine and other forms of cocaine base.” 498 F.3d at 644.

Therefore, for purposes of sentencing under § 841(b), the

evidence must show that the substance at issue is crack,

and not just cocaine base. Edwards, 397 F.3d at 576-77.

Sentencing judges have wide latitude in the types of

evidence they may consider in making factual determina-

tions affecting a sentence. See United States v. Hankton, 432

F.3d 779, 790 (7th Cir. 2005). At Padilla’s sentencing

hearing, the government relied primarily on the testimony

of Agent Gomez, a six-year veteran of ATF with five years

specializing in narcotics trafficking, in its effort to prove

the drug type. Agent Gomez testified to the following: on

September 20, 2002, during a conversation with Padilla

regarding a proposed drug transaction, Padilla offered to

sell Agent Gomez crack cocaine. On September 26, 2002,

Agent Gomez met the CI, Padilla, and Padilla’s child in a

K-Mart parking lot with the intention of purchasing drugs

from Padilla and Santiago. While waiting for Santiago to

No. 06-4370 5

arrive with the drugs, Agent Gomez asked Padilla how

much longer it would be for the drugs to arrive. Padilla

responded that the drugs were “in the cooking process, it

was drying at the time. . . . That was the reason for the

wait.” Agent Gomez, who had made approximately twenty

undercover crack cocaine purchases, understood the term

“drying” to mean the final process of cooking crack

cocaine.

Santiago eventually arrived with the drugs in a bag, and

gave them to the CI, who smelled the drugs and gave them

to Agent Gomez. Agent Gomez noted that the drugs had a

“very, very strong, pungent smell,” consistent with the

smell of crack cocaine. When the CI asked about the quality

of the drugs, Padilla responded that the drugs were “fresh,

cooked right off the lamb” and that “the stuff that he had

just handed was good and that it was cooked up. It was

cooked.”

After Agent Gomez left the parking lot with the CI, he

asked the CI about the quality of the drugs they had just

purchased. The CI replied that “there’s four and a half

here, these things—these things cook so small, man, you

could take an ounce and they’ll shrink about that big, this

stuff was cooked in a brick, all together in one brick.”

Agent Gomez understood this statement to mean that “the

crack cocaine in this form, a hard substance, rock-like

substance will crumble into smaller rocks and the four and

a half ounces being purchased was more than likely cooked

off the—cooked into a whole kilo and taken that portion

out of it.” Ultimately, Agent Gomez testified that based on

his training and experience, his participation in the drug

deal, and the statements made by the CI and Padilla, the

substance he obtained from Padilla was cocaine base in the

form of crack cocaine.

6 No. 06-4370

On cross-examination of Agent Gomez, Padilla intro-

duced a written statement prepared by the CI that ap-

peared to contradict the CI’s statements to Agent Gomez.

The CI said in the statement that upon opening the package

containing the narcotics, he observed “four and a half

ounces of cooked rock, a white substance powder.” Padilla

argued that the drugs could not be both “crack” and

“powder.” The CI did not testify at the sentencing hearing.

On redirect, the government pointed out that at another

portion of the same statement, the CI said that Santiago

“will be at this location to drop off the cocaine of rock.”

The government introduced two laboratory reports on

the chemical analysis of the drugs. The first analysis tested

positive for the presence of cocaine, and the second

analysis reflected the presence of cocaine base. Neither lab

report tested for the presence of sodium bicarbonate, an

ingredient commonly used in preparing crack.

The district court concluded that the drugs in question

were indeed crack: “On the issue of crack cocaine, based on

the testimony of [Agent Gomez]’s observations, what he

saw and heard, and the second lab report, I conclude that

there is sufficient reliable evidence for a reasonable jury to

conclude that the controlled substance was crack cocaine

base.”

On appeal, Padilla argues that the analysis of the drugs

performed prior to their destruction must be disregarded

because neither tested for the presence of sodium bicarbon-

ate. While crack is usually prepared by processing cocaine

hydrochloride and sodium bicarbonate, Edwards, 397 F.3d

at 572, we have never mandated that a substance must

contain sodium bicarbonate in order to be crack. United

States v. Lake, 500 F.3d 629, 634 (7th Cir. 2007). The second

laboratory report was only one of the pieces of evidence the

district court considered in reaching his conclusion.

No. 06-4370 7

We have held that the government can prove a substance

is crack by offering testimony from people familiar with

the drug, United States v. Anderson, 450 F.3d 294, 301 (7th

Cir. 2006), including veteran police officers and forensic

chemists, United States v. Linton, 235 F.3d 328, 329-30 (7th

Cir. 2000), as well as an informant’s belief that he was

purchasing crack, United States v. Booker, 260 F.3d 820, 824

(7th Cir. 2001). See also United States v. Buchanan, 362 F.3d

411, 413 (7th Cir. 2004); United States v. Branch, 195 F.3d 928,

933-35 (7th Cir. 1999). Though this is a close case, we find

no reversible error in the district court’s determination that

Padilla possessed crack. The combination of the observa-

tions of the veteran narcotics officer, the statements by

Padilla regarding the proposed sale of crack and the

“cooking” and “drying” of the drugs, and the second

laboratory report is minimally sufficient to satisfy the

government’s burden of proof and permit a district court

to conclude that the substance was crack. Though the CI’s

statement in his written report describing the narcotics as

“cooked rock, a white substance powder” certainly mud-

dies the water, the entirety of the evidence tips the scale in

favor of the district court’s ultimate conclusion.

Padilla suggests that the government failed to meet its

burden because the destruction of the narcotics precluded

the introduction of the drugs at the hearing. We note that

the destruction of the drugs was indeed regrettable. To an

extent, however, Padilla’s protestations ring a bit hollow,

as he had the opportunity to file a motion for an independ-

ent expert to examine the drugs—prior to the discovery of

their destruction—and chose not do so. More to the point,

the government need not present the substance in the

courtroom during the sentencing hearing in order to meet

its burden that the substance is crack. See Lake, 500 F.3d at

8 No. 06-4370

634 (citing Buchanan, 362 F.3d at 413; Linton, 235 F.3d at

329-30).

Our deferential standard of review in this matter compels

our conclusion that there was no clear error. We note,

however, that the evidence distinguishing crack cocaine

from other forms of cocaine base in this case was undeni-

ably thin. Though the government asked Agent Gomez if

he could distinguish between crack and powder cocaine, it

did not ask him to distinguish between crack and other

types of cocaine base. We reiterate that in cases such as this

the government must produce evidence to show that the

substance was specifically crack, and not just any form of

cocaine base. See Morris, 498 F.3d at 644; Edwards, 397 F.3d

at 576-77. Given the disparity between crack and other

cocaine bases, and in the wake of Kimbrough and the

amended crack Sentencing Guidelines (discussed more

fully below), it is all the more critical that the government

meet its burden of proving the drugs to be crack cocaine as

distinct from other forms of cocaine base.

B. Reasonableness of Sentence

Padilla next argues that his sentence was unreasonable

because (1) the court made several procedural errors in

making an upward departure from the properly calculated

guideline range of 151-188 months’ imprisonment and (2)

his sentence of 327 months’ imprisonment was greater than

necessary to satisfy the factors enumerated in 18 U.S.C.

§ 3553(a). After United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), we generally review a

sentence for reasonableness in light of the statutory

sentencing factors in 18 U.S.C. § 3553(a). Gall v. United

States, 552 U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445

No. 06-4370 9

(2007); United States v. Hollins, 498 F.3d 622, 629 (7th Cir.

2007). Because we remand in light of Kimbrough, we do not

reach all of the issues raised by Padilla regarding the

reasonableness of his sentence.

At Padilla’s sentencing hearing, the district court

adopted the findings in the presentencing investigation

report (“PSR”). The PSR calculated Padilla’s total offense

level at twenty-nine, based in part on the conclusion that

the drugs were crack cocaine. The PSR identified ten prior

felony convictions—including several involving the use of

a weapon and three occurring while incarcerated—that

added up to twenty-nine criminal history points, placing

Padilla in criminal history category VI. Based on this

offense level and criminal history category, the PSR made

an advisory guideline calculation range of 151 to 188

months’ imprisonment. However, because of Padilla’s

prior convictions and the quantity of the cocaine base, the

statutory mandatory minimum sentence was 240 months’

imprisonment. See 21 U.S.C. § 841(b)(1)(A). The Guidelines

provide that “[w]here a statutorily required minimum

sentence is greater than the maximum of the applicable

guideline range, the statutorily required minimum sen-

tence shall be the guideline sentence.” See U.S.S.G.

§ 5G1.1(b). Therefore, as calculated in the PSR, Padilla’s

advisory guidelines sentence was 240 months’ imprison-

ment.

At sentencing, the government argued in favor of an

upward departure from advisory guidelines sentence of

240 months, asking that the court consider U.S.S.G.

§ 4A1.3(a)(4)(B), which discusses upward departure when

the criminal history category fails to adequately reflect the

10 No. 06-4370

nature of the defendant’s criminal past.1 The government

noted that the defendant’s twenty-nine criminal history

points were significantly more than the thirteen required to

qualify for category VI. Because the criminal history

category underrepresented his criminal background, the

government argued, an upward departure of six offense

levels—from twenty-nine (151-188 months) to thirty-five

(292-362 months)—was warranted. Counsel for Padilla

argued that Padilla’s criminal history was already consid-

ered in the guidelines calculation, and that the government

cited no authority for the suggestion that the guidelines

advised a potential doubling of his sentence. He also

presented mitigating factors, including Padilla’s remorse

for his conduct and his efforts to obtain an education.

The district court agreed with the PSR’s calculation that

the advisory guidelines sentence was 240 months’ impris-

onment. In considering an above-guidelines sentence, the

district court first noted Padilla’s lengthy criminal history,

including nineteen prior arrests and eleven criminal

convictions, and agreed with the government that the

twenty-nine criminal history points were well above that

required for category VI. The court then explained his

1

The full text of U.S.S.G. § 4A1.3(a)(4)(B) states:

Upward Departures from Category VI.—In a case in

which the court determines that the extent and nature of

the defendant’s criminal history, taken together, are

sufficient to warrant an upward departure from Criminal

History Category VI, the court should structure the

departure by moving incrementally down the sentencing

table to the next higher offense level in Criminal History

Category VI until it finds a guideline range appropriate to

the case.

No. 06-4370 11

reasons for giving Padilla a sentence above the calculated

guidelines range:

Drugs tear at the very fabric of our society, split apart

families and cost people their lives. Defendant’s actions

have contributed to the ongoing drug problem in the

country. The sentence I am imposing upon the defen-

dant is a just punishment for the offense and suffi-

ciently severe to promote respect for the law and to

serve as a deterrence to the defendant and to others

who contemplate engaging in similar criminal conduct.

The public will be protected by this sentence as the

defendant will be incarcerated and given an opportu-

nity to rethink his way of life during that incarceration

and defendant has indicated that he will change his

way of life.

The court concluded: “I find that an upward departure as

argued by the government under advisory sentencing

guideline 4A1.3 is appropriate based on the inadequacy of

the defendant’s criminal history score due to both the

number and nature of his prior offenses.” The court then

sentenced Padilla to 327 months’ imprisonment.

In reviewing Padilla’s sentence, we reserve all but one

issue pending the remand discussed below: the calculation

of the guidelines range. In sentencing a defendant, a

district court begins by calculating the correct applicable

guidelines range. Gall, 128 S.Ct. at 596 (citing Rita v. United

States, 551 U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007));

United States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007).

Padilla argues that the properly calculated range was

151-188 months, and not 240 months, as the district court

concluded. We disagree. The range of 151-188 months was

correct for Padilla’s criminal history category and offense

level, but U.S.S.G. § 5G1.1(b) instructs the district court to

12 No. 06-4370

make the statutory minimum sentence the guidelines

sentence when it exceeds the guidelines range. See U.S.S.G.

§ 5G1.1 cmt.; United States v. Santiago, 495 F.3d 820, 822-23,

825 (7th Cir. 2007); United States v. Nelson, 491 F.3d 344, 349

(7th Cir. 2007); see also United States v. Duncan, 413 F.3d 680,

683 (7th Cir. 2005) (noting that even after Booker, district

courts remain bound by applicable statutory minimums).

As the district court properly calculated, the statutory

minimum sentence under § 841(b)(1)(A) of 240 months’

imprisonment was the guideline sentence.

Our review of the reasonableness of Padilla’s sentence,

for the time being, ends here. The district court imposed

Padilla’s sentence prior to the Supreme Court’s ruling in

Kimbrough, which addressed the 100:1 sentencing disparity

between offenses involving crack and powder cocaine. In

Kimbrough, the Supreme Court held that district courts are

free to consider, as part of their analysis of the § 3553(a)

factors, the disparity in the guidelines ranges for offenses

involving crack cocaine compared to those for powder

cocaine. 128 S.Ct. at 575. The Court stated that the guide-

lines for crack offenses are advisory only, and therefore “it

would not be an abuse of discretion for a district court to

conclude when sentencing a particular defendant that the

crack/powder disparity yields a sentence ‘greater than

necessary’ to achieve § 3553(a)’s purposes.” Id. at 574-75.2

2

Prior to Kimbrough, the United States Sentencing

Commission criticized the 100:1 sentencing disparity, and

subsequently reduced the base offense level in

the guideline ranges for crack offenses by two levels

for those sentenced on or after November 1, 2007. See U.S.

SENTENCING COMM’N REPORT TO THE CONGRESS:

(continued...)

No. 06-4370 13

Several of our sister circuits have addressed the impact of

Kimbrough. See, e.g., United States v. Wise, ___ F.3d ___, 2008

WL 361089, at *9-10 (3d Cir. Feb. 12, 2008) (affirming

sentence where district court clearly indicated that it

understood the full scope of its discretion to consider the

crack/powder disparity in imposing sentence); United

States v. Medina Casteneda, 511 F.3d 1246, 1248-49 (9th

Cir. 2008) (remanding for resentencing in light of

Kimbrough where the district court stated that it could not

consider the crack/powder cocaine disparity as part of its

consideration of the § 3553(a) factors); United States v.

Dawson, 2008 WL 194914, at *5 (11th Cir. Jan. 24, 2008)

(same).

2

(...continued)

COCAINE AND FEDERAL SENTENCING POLICY 8 (May 2007),

available at http://www.ussc.gov/r_congress/cocaine2007.pdf;

Amendments to the Sentencing Guidelines for the United States

Courts, 72 Fed.Reg. 28571-28572 (2007). On December 11, 2007,

the Commission voted to give retroactive effect as of March 3,

2008 to the amendment to the crack guideline. See U.S.S.C.

Press Release, U.S. Sentencing Commission Votes

Unanimously to Apply Amendment Retroactively for Crack

Cocaine Offenses (Dec. 11, 2 0 07), available at

http://www.ussc.gov/PRESS/rel121107.htm. Reducing the

crack/ powder disparity does not directly help Padilla, how-

ever. Though the crack guideline change applies retroactively,

it would not affect Padilla’s sentencing guideline range, which

was determined by statute under 21 U.S.C. § 841(b)(1)(A) and

U.S.S.G. § 5G1.1(b). But Kimbrough could potentially affect the

reasonableness of Padilla’s above-guidelines sentence (e.g., if the

district court thought that he could not consider the 100:1

disparity when choosing to add eighty-seven months to Padilla’s

guideline sentence).

14 No. 06-4370

Our challenge in this case is to determine Kimbrough’s

effect on Padilla’s appeal. Padilla did not specifically ask

the district court to consider the 100:1 disparity when

determining his sentence for an offense involving crack.

Nor would he have stood on sound legal footing in so

doing prior to Kimbrough. See United States v. Miller, 450

F.3d 270, 273-276 (7th Cir. 2006), abrogated by Kimbrough,

128 S.Ct. at 574-75. However, Padilla did contest before the

district court and again on appeal whether the drugs in

question were crack. We can presume that Padilla’s

primary purpose in disputing the drug type was to avoid

the harsh effects of the crack sentencing disparity, since no

other logical inference exists. In so doing, Padilla preserved

the issue, however obliquely, of whether the district court

could consider the 100:1 sentencing disparity in sentencing.

The district court did not address his agreement or

disagreement with the 100:1 ratio, making no comments

about whether he thought he could consider the disparity

in rendering a sentence. But we need not infer from his

silence that the district court agreed with the 100:1 ratio.

On the record before us, we have no way of knowing if the

district court would have imposed the same above-guide-

lines sentence had the court known that he had discretion

to consider that disparity when deciding upon a sentence

under § 3553(a). This is not a case where the district

court stated that he would have imposed the same sentence

even if there were no guidelines, which would have made

clear that the crack/powder disparity did not affect the

sentencing decision. Cf. United States v. White, ___ F.3d ___,

2008 WL 585036, at *6 (7th Cir. Mar. 5, 2008). Nor is this a

case where the crack/powder disparity issue was not

adequately preserved at the district court level,

limiting our review to plain error. Cf. United States v.

No. 06-4370 15

Taylor, ___ F.3d ___, 2008 WL 782739 (7th Cir. March 26,

2008). Because we cannot ascertain with any exacting

degree of certainty whether the sentencing judge would

have imposed the same term of incarceration in the wake

of Kimbrough, and because we find that the issue was

adequately preserved, a remand is appropriate.3

We express no opinion as to the reasonableness of

Padilla’s sentence. However, we encourage the district

court to keep in mind our mandate, recently reiterated by

the Supreme Court in Gall, that a district court take into

consideration the factors set forth in 18 U.S.C. § 3553(a) and

provide an adequate explanation for the sentence given.

After calculating the Guidelines range, a district court must

give both parties an opportunity to argue for whatever

sentence they deem appropriate, and then consider the

factors set forth in 18 U.S.C. § 3553(a) to determine whether

those factors support the sentence requested by a party.

Gall, 128 S.Ct. at 596; United States v. Dale, 498 F.3d 604,

611-12 (7th Cir. 2007). If a district court “decides that an

outside-Guidelines sentence is warranted, [it] must con-

3

In remanding for resentencing, we note the Supreme Court’s

recent remand of a case similar to Padilla’s. See Rios v. United

States, 128 S.Ct. 876 (2008) (vacating judgment in United States v.

Rios, 224 Fed.Appx. 529 (7th Cir. 2007) and remanding for

further consideration in light of Kimbrough). In Rios, counsel for

the defendant filed a no-merit brief under Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and we granted

the motion to withdraw and dismissed the appeal. As in this

case, Rios did not explicitly raise the 100:1 sentencing disparity,

but did dispute that the drugs at issue were crack. The Supreme

Court granted certiorari, vacated the judgment, and remanded

for further consideration in light of Kimbrough. Rios, 128 S.Ct.

876.

16 No. 06-4370

sider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree

of variance.” Gall, 128 S.Ct. at 597; United States v. McIlrath,

512 F.3d 421, 426 (7th Cir. 2008). The further a sentence

varies from the advisory guidelines range, the more

detailed the district court’s explanation must be. Gall, 128

S.Ct. at 597 (“[A] major departure should be supported by

a more significant justification than a minor one.”); United

States v. Wachowiak, 496 F.3d 744, 749-50 (7th Cir. 2007). In

this case, the district court’s explanation for the above-

guidelines sentence, as well as the analysis of the

§ 3553(a) sentencing factors, was slim at best. We recom-

mend a more thorough inquiry on remand.

III. Conclusion

For the foregoing reasons, the judgment of the district

court regarding the drug type finding is AFFIRMED, and we

VACATE Padilla’s sentence and REMAND for resentencing.

USCA-02-C-0072—3-31-08