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September 22, 2004

Waiting, waiting, waiting....

Marcia Oddi over at the Indiana Law Blog here notes a noteworthy ruling authored by Judge Easterbrook today in US v. Malik, No. 03-3404 (7th Cir. Sept. 22, 2004). In Malik, Judge Easterbrook explains that the defendant's failure to raise Blakely issues in the district court will not preclude him from doing so in an ordered resentencing:

Because Malik must be resentenced, the district court will need to take account of United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, No. 04-104 (U.S. Aug. 2, 2004). Malik failed to make a Booker-like argument in the district court, but he is free to develop this contention at a new sentencing after Booker. Defendants may raise after a remand new arguments based on statutes or opinions that post-date the original sentencing and are not logically foreclosed by the appellate decision. [cites omitted] Appellate mandates may limit the issues that are open on remand, see Pearson v. Edgar, 153 F.3d 397, 405 (7th Cir. 1998), but we impose no such restrictions; Malik should be resentenced from scratch....

Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision.

Though I think the Seventh Circuit's decision to allow the defendant to "be resentenced from scratch" is itself significant, Marcia Oddi thinks the last paragraph suggests that the Circuit is calling "a halt to sentencing until Supreme Court acts in Blakely/Booker." I am not sure if that's exactly what Judge Easterbrook and the Seventh Circuit is saying in Malik, but it is not an unreasonable inference.

September 22, 2004 at 05:15 PM | Permalink


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