CA1: four Booker remands in an unpublished opinion

US v. Diaz-Correa et. al., Nos. 04-2187, 04-2331, 04-2369, 04-2420 (unpublished) grants a Booker remand to all FOUR defendants.  The government concedes that error was preserved.  The court notes that “Here, for all but one defendant, Díaz, the government does not even attempt to show that the district court would have imposed the same sentence under the advisory Guidelines and other statutory factors.”  As to Diaz, the parties had stipulated as to some stuff (not sure what) in a plea agreement, but the court concludes that those facts “...dealt only with the Guidelines calculations and therefore provide no insight into what the district court would have done if the Guidelines were not mandatory.”  Although Diaz’ lawyer had asked for an alternative sentence (if the guidelines were unconstitutional) the court declined the invitation, but sentenced him at the bottom of the guidelines anyway, which is good enough for a Booker remand in the First.  Therefore, the court concludes that the government failed to show that he would have done better.  The Court a challenge amount of loss attributed to one member of a conspiracy.