January 18, 2007
Does the Seventh Circuit know its own law?
As discussed here, last year the Seventh Circuit in Demaree decided that, after Booker, the ex post facto clause does not preclude a District Court from using the latest guidelines, which in turn raised a lot of questions about whether and when a district judge in the Seventh Circuit might appropriate "consider" only earlier versions of the guidelines. Today, the Seventh Circuit in US v. Jung, No. 05-3718 (7th Cir. Jan 18, 2007) (available here), without mentioning Demaree, affirms a sentence in which the district court, after Booker, "chose a sentence within the advisory range of the 1997 Guidelines."
Question for folks practicing in the Seventh Circuit: is Demaree being faithfully applied or are old versions of guidelines still the coin of the realm? Since the panel in Jung did not seem to be fully aware of the work in Demaree, I am wondering if district judges throughout the circuit are.
January 18, 2007 at 05:06 PM | Permalink
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Just reading the post itself, I see no inconsistency. Under your description of Demaree, a district court may use updated guidelines. That's not the same thing as a holding that it must use updated Guidelines, which is what would have been necessary to secure a reversal in Jung, again, following the description in the post.
Posted by: | Jan 19, 2007 11:09:31 AM
Hello. I am an attorney practicing white
collar criminal defense in the Northern
District of Illinois. My area of practice is
federal sentencing. In response to your
above query re: Demaree, I am pleased to say
that although I read Demaree as requiring
the use of the most recent guidelines, most
of the district court judges have stated
their opinion, on the record, that they
are entitled to apply whichever guidelines
they choose. Additionally, the probation
office now includes the "most favorable"
guidelines in the psr. A probation officer
told me that this is now office policy.
For a short period of time after Demaree, the
probation office used only the most recent
guidelines in calculating the advisory range.
The U.S. Attorney's Office is another story.
They insist on using the most recent.
Monico Pavich & Spevack
20 South Clark Street
Chicago, Illnois 60603
Posted by: jacqueline jacobson | Jan 24, 2007 11:49:15 AM