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April 20, 2005

Two more of interest from the Seventh Circuit

I noted in this post late last night two interesting sentencing opinions issued by the Seventh Circuit on Tuesday. Today we get two more from that court which seem worth noting:

  • US v. Skoczen, No. 03-1960 (7th Cir. Apr. 20, 2005) (available here), involves a Paladino remand; notable is the court's initial explanation that, "because the Guidelines do retain force even though they are no longer mandatory, ... errors in their application remain relevant.  Even under an advisory regime, if a district court makes a mistake in calculations under the Guidelines, its judgment about a reasonable sentence would presumably be affected by that error and thus (putting aside the implications of plain error review) remand would be required just as before."  Also, Skoczen concludes with some detailed, and somewhat confusing, dicta about the prior conviction exception.

  • US v. Miller, No. 04-1989 (7th Cir. Apr. 20, 2005) (available here), involves another sentencing remand; it includes some interesting discussion of the the mitigating role adjustment and also some dicta on post-Booker application of the obstruction of justice enhancement.  UPDATEPeter Henning at White Collar Crime Prof Blog comments on the Miller decision in this post.

April 20, 2005 at 04:03 PM | Permalink


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The Skoczen case seems very significant to me. Since Booker was decided and the reasonableness standard of review was put in place, it seemed logical to assume that an error in calculating the guideline range would not entitle a defendant to a remand. Rather, it seemed logical to assume that even if there was a guideline calculation error, vacation of the sentence would not be necessary so long as the ultimate sentence was reasonable. With the language in this case, however, it looks as if a sentence imposed based upon an incorrectly determined guideline range will be deemed to be automatically "unreasonable" and sufficient to warrant a remand. If this is correct, then Booker has actually increased the number of ways with which a defendant can obtain a remand--either through good-old-fashioned guideline calculation errors or unreasonableness (with or without guideline calculation errors).

Posted by: JEH | Apr 20, 2005 4:18:06 PM

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