Covering all the bases

In an interesting twist on the alternative sentencing idea (previously detailed here and here), the Seventh Circuit in US v. Schaefer, 2004 U.S. App. LEXIS 19166 (7th Cir. Sept. 13, 2004), recently decided that "[a]lthough Blakely and Booker necessitate our remand of this case to the district court for resentencing, we will nonetheless address Schaefer's arguments under the Guidelines ... in the interest of judicial economy in the event that the Supreme Court may subsequently decide some other fate for the federal Guidelines than that indicated in Booker."

After some thoughtful but fairly standard pre-Blakely analysis, the Seventh Circuit holds that the case is remanded due to Booker, but "in the event that the Supreme Court decides that Blakely does not invalidate the federal sentencing Guidelines, we affirm" Schaefer's sentence. And at the very end of its ruling, the Seventh Circuit drops this interesting footnote:

Schaefer has also requested immediate release under bond from incarceration, since he has already served what would presumably be his sentence if the Guidelines are invalid. Based on the present state of the law in this circuit, this seems to be a meritorious request, but we leave this decision to the district court on remand. In this regard, the district court might wish to take note of Schaefer's earlier positions in this case with respect to unchallenged aspects of his sentence. See Booker, 375 F.3d at 510 (interpreting Blakely to allow sentences to be imposed based on "what the jury found or the defendant admitted or, as here, did not contest") (emphasis added).