Case Information
*1 Before E ASTERBROOK R OVNER W ILLIAMS , Circuit Judges .
W ILLIAMS Circuit Judge
. Defendant Juan po lice officer employed by Chicago Police Department. While duty, funneled towing business certain tow truck companies exchange bribes. eventually arrested indicted three counts attempt *2 ing to commit extortion. He pled guilty to one count. At tencing, Prado asked court consider another former Chicago police officer, Officer James Wodnicki, whom Prado believed was him. The refused consider it believed it could only consider dispari ties they nationwide basis. The prevented Prado and prosecutor (who prosecuted both Wodnicki and Prado) from introducing related Wodnicki’s sentence. issue here is whether erred by understanding it had discretion ar gument and whether Prado was harmed by error. conclude and harmless. erred cause realize deviate Sentencing could others’ individual sentences deciding what impose Prado. Moreover, based record before us, impossible determine whether have received same absent error. Therefore, reverse remand mat ter resentencing.
I. BACKGROUND Juan Chicago police officer 14th Dis trict Chicago Police Department (“CPD”). FBI began “Operation Tow Scam,” investigation into extortion by, bribery of, CPD officers connection with tow truck companies their drivers. charged three counts attempting commit extortion, vio lation U.S.C. 1951. pled guilty one count, *3 admitting that during course of his employment he re ‐ ceived bribe payments from tow truck operators in exchange funneling them business. Prado also admitted approximately occasions, between May and October he requested and received bribe payments totaling $3,790. All told, estimated Prado received $10,015 bribe payments. anticipation of sentencing, probation office pre
pared a Presentence Investigation Report (“PSR”), which outlined applicable sentencing guidelines. PSR also con tained a list of nine other related cases, including of CPD officer James Wodnicki. However, report contain any more about related cases. With a base offense level of a criminal history category of I, Guideline range months. accept ed PSR’s Guideline calculation, but argued a num ber of factors, including his upbringing, work history, chari table work, injuries sustained duty, nature fense, his acceptance responsibility mitigating circumstances warranting reduced under U.S.C. 3553(a).
At hearing November sought probation. sought term impris onment within Guideline range. During his presentation, referred Wodnicki’s case. He argued should impose avoid disparity himself Wodnicki, whom believed situated. Wodnicki allegedly received $30,000 bribe payments tow truck companies drivers. pointed out different judge same sentenced Wodnicki months’ *4 imprisonment, despite the fact his Guideline range was to months. Given similarity Prado’s Wodnicki’s offense conduct, Prado asked court to con ‐ sider Wodnicki’s case imposing sentence on him. When asked court Wodnicki’s sen ‐ tence, he unable present sentencing memoran ‐ dum in Wodnicki’s case. He said unable find it. His inability find memorandum pre vented him from introducing mitigating or aggravating factors in Wodnicki’s case.
The court refused Wodnicki’s tence. The court said, “the Seventh Circuit has stated any relating unwarranted has presented on national basis.” The court then stat ed sentenced each individual on record before based factors presented case. prosecu tor case, who also prosecutor Wodnicki’s case, offered discuss Wodnicki’s court, but prevented prosecutor provid ing information regarding Wodnicki’s circumstances. Be cause had evidence potential na tionwide disparity, allow present further information or issue. Ultimately, determined Wodnicki’s had no bearing case.
Before imposing its sentence, explained its reasoning imposing within consideration 3553(a) factors. addition, reiterated provided any related disparities. *5 5 ‐ sentenced Prado within Guidelines term months’ imprisonment. now appeals.
II. ANALYSIS contends that district erred because it did understand it had discretion consider Wodnicki’s determining sentence this misunder
standing constituted procedural error. Appellant’s Br. 12. He challenges district court’s assertion it was only permitted address related sentence disparities if was basis. order determine whether will upheld, we evaluate issue two stages. First, we exam ine whether procedural because it realize it had discretion deviate Sentencing consider individual tences. Hill F.3d (7th Cir. 2011). Second, if erred, analyze whether harmless. Bennett 2013). review compliance U.S.C. 3553(a) under de novo review. Grigsby 2012).
A. erred because it unaware it consider disparities among simi larly defendants.
At sentencing, argued sentenced him, should also given another officer whom believed situated. rejected believed could only they *6 on basis. At the time, not challenge the interpretation of Seventh Cir cuit precedent alert that it discretion consider among defendants. It is only appeal that argues that erred because una ware its unwarranted disparities. Although only raises this argument first time appeal, government does argue that forfeited argument.
At first glance, would appear Prado’s is forfeited we cannot address matter. However, because government does argue forfeited particular argument, we may still reach merits his under “waived waiver” doctrine. See, e.g., Angle n.11 2000) (stating although defendant first raised ap peal, address merits appellant’s chal lenge government waived its waiver defense by asserting brief or at oral argument). Ultimately, forfeiture is absolved by government’s failure recognize forfeiture by responding argu ment. See Tichenor 2012) (applying waived waiver doctrine forfeited claims). concedes, agree, sentencing. order
properly defendant, needs con sider factors enumerated 3553(a). Gall U.S. (2007). One factors may need avoid dispar ities defendants. U.S.C. *7 7 12 ‐ 3762 § 3553(a)(6). While a district does have “com prehensively discuss each of [§ 3553(a)] factors,” United States v. Villegas–Miranda , 579 F.3d 801 (7th Cir. 2009), commits procedural if does give “meaningful consideration” relevant factors in a defendant’s case, United States v. Paige , 611 F.3d 398 2010). With regard disparities, if a imposes a within ‐ Guideline range sentence, implicitly incor porates United States Sentencing Commission’s concerns regarding avoiding among defendants. See Gall , 552 U.S. at 54.
However, a has discretion go beyond Sentencing Commission’s generalized considerations. See United States v. Bartlett , 567 909 2009). A may commit second type of unaware of additional discretion. See id . Booker , Supreme Court rendered scheme advisory. U.S. 220 (2005). Court held in Kim brough U.S. (2007), reiterated in Spears U.S. (2009), judge has depart Sentencing Guidelines. More importantly, Court held has considerable power adopt own framework order meet ends justice. See Spears, U.S. at 66. have explained that, “§ permits judge reduce one defendant’s because another’s lenient – 3553(a)(6), but despite it.” Bartlett at (emphasis original). And stated Bartlett that, “if judge thought himself forbidden take account [other defendants’] (relatively) low sentences decid ing what punishment impose [the defendant], mistaken.” Id . 909. *8 find district committed second type
of procedural error. The district court’s statements at hearing indicate thought it lacked to disparities among defendants as a matter of law. stated that, “the Seventh Circuit has stated any argument relating unwarrant ‐ ed disparities has be a ba ‐ sis.” this case, unaware of discre tionary power refused proffered regarding defendants convict ed under Operation Tow Scam sting operation not know could do so. This amounts procedural error. However, is end our analysis. A signifi cant error by at tencing can be harmless. Bennett , F.3d 887.
B. error harmless. Normally, we would apply plain error standard review. See Burge , F.3d (7th Cir. 2012). However, where government fails assert an forfeited fails identify standard review appropriate such forfeiture, issue treated as if objection raised below standard re view appropriate such issue controls. See e.g. , Paredes 1996) (“[B]ecause government failed assert Paredes forfeited her ob jection alleged error, has waived Paredes’s forfeiture, will review alleged as she made proper objection.”); Leichtnam 1991) (noting issues raised normally limited plain review, but government’s failure ap *9 peal to argue that the defendant waived his argument al lowed the “confront the defendant’s argument merits without the screen the plain error stand ard”). Because government failed argue forfeiture or standard review appropriate forfeiture, we apply harmless error standard as if no forfeiture fact oc curred. order show that error harmless, “the government must able show that … error affect court’s selection sentence im posed.” Id . (quoting Abbas , F.3d (7th Cir. 2009)). We will deem an error harmless we are convinced that sentence would have been same ab sent error. Abbas 2009).
After careful review, cannot say harmless. government argues harmless because rejected, independent grounds, should take into account another defendant ʹ s sentence deciding what impose Prado. Namely, argues rejected argu ment because failed present sufficient evidence sup port his claim Guideline cause an disparity. do agree government’s argument.
After calculates range, must give both parties opportunity argue whatever they deem appropriate. Gall U.S. 49; Padilla 2008). A review record shows reason failed present sufficient supported his position *10 the court prevented him or the prosecution from dis cussing whether could meaningfully compared Wodnicki. prosecutor this case would have been position enlighten the given was the same prosecutor prosecuted Wodnicki. Yet, the prevented the prosecutor commenting the similari ties differences the two cases errone ously believed could only such evidence the potential disparity presented basis. Be cause its incorrect interpretation law, hin dered own ability make meaningful comparison. Had or been allowed introduce more information hearing, could have determined whether two defendants indeed whether comparison warranted. Because actions, record does indicate what information prosecutor would have may have been useful court.
Moreover, there is nothing record indicate been given opportunity present additional would have given him same tence. Given record before court, is impossible determine whether have received same sentence. Therefore, harmless remanded for resentencing.
III. CONCLUSION V ACATE judgment
R EMAND resentencing.