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October 8, 2004

Bail and Blakely/Booker

With many thanks to Crime & Federalism's post here, we now have Judge Posner's wisdom, writing for a unanimous three-judge panel, about when in light of Booker a criminal defendant is entitled to release pending appeal. Here, in lots of detail, is what Judge Posner explains in US v. Lagiglio, No. 01 CR 348-7 (7th Cir. Oct. 8, 2004), a case involving a 41 month sentence for a tax offense:

LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.

The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. The Bail Reform Act authorizes release pending appeal only if (so far as bears on this case) the appeal "raises a substantial question of law or fact likely to result in . . . a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iv). An imprisoned person is not to be released pending further proceedings if it is a certainty that however those proceedings are resolved, she will have to be returned to prison....

The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

October 8, 2004 at 09:18 PM | Permalink


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I was especially interested in what looks like a throw-away line about Booker / Blakely waiver, from a judicial perspective, as a "briar patch." If the key to Blakely is treating the issues that arise as in Criminal Law 101 and Criminal Procedure 102, as was suggested some time ago in a comment here, there is nothing thorny about it. The amicus brief by the Northern Texas Federal Defender in Booker and Fanfan pretty well covers the block.

Is it a briar patch simply because the Supreme Court has not yet addressed the question and because of the potential effect on a large number of cases? Boy, that sure didn't stop folks, including Posner, from jumping on the Guidelines after Blakely like some very hungry dogs on a very meaty bone.

I really do wonder what Posner has in mind. Could it be how to reconcile U.S. v. Cotton with Sullivan v. Louisiana in Blakely World? Probably not. But that is a place Br'er Rabbit is going to eventually have to go.

Posted by: Michael Ausbrook | Oct 9, 2004 1:42:07 AM

Any positive decisions on application of blakely or apprendi to juvenile waiver, referral, transfer, or decline hearings? A colleague recalls reading several months ago on your website about an unpublished opinion applying blakely to juvenile waiver hearings, but I can't find it and my westlaw searches have not revealed anything. I'm an appellate PD in New Jersey.

Posted by: virginia barta | Jul 13, 2005 3:48:33 PM

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