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February 25, 2005

7th Circuit speaks on plain error (and follows Crosby)

I just returned from the terrific AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (at which I learned a lot and from which hope to share some new insights over the weekend).  And I returned to find that the Seventh Circuit, per Judge Posner, has weighed in on plain error and has, with a slight tweak, followed the lead of the Second Circuit in Crosby. 

The opinion in US v. Paladino, No. 03-2296 (7th Cir. Feb. 25, 2005) (available here), is a wonderful and remarkable effort, and it includes two dissents from the denial of rehearing en banc. As Judge Posner explains in the last paragraph, the Paladino opinion "was circulated to the entire court before issuance [and all] but two members of the court in regular active service voted not to hear the case en banc."

There are many amazing passages in Judge Posner's opinion and in the en banc dissents of Judges Ripple and Kanne.  I hope to comment on Paladino and on the deepening plain error three-way split in the circuits this weekend, but for now every Booker watcher can do their own read (and add comments below) of this latest Posner contribution to our new sentencing world.

February 25, 2005 at 09:25 PM | Permalink


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» We Meant it in Paladino from Appellate Law
In United States v. Padadino, the Seventh Circuit held that plain error would govern appeals brought under Booker. Today a unanimous three-judge panel of the Seventh Circuit said, [Read More]

Tracked on Feb 28, 2005 6:02:48 PM

» We Meant it in Paladino from Appellate Law
In United States v. Padadino (read Prof. Berman's coverage here), the Seventh Circuit held that plain error would govern appeals brought under Booker. Today a unanimous three-judge panel of the Seventh Circuit said, [Read More]

Tracked on Feb 28, 2005 6:04:54 PM


There appears to be some dicta in this opinion suggesting an adoption of the Wilson (J. Cassell) approach to the role of the Guidelines under s. 3553(a):

"Under the new sentencing regime the judge must justify departing from the guidelines, and the justification has to be reasonable . . . ."

Doesn't this sound like the guideline range is now to be presumptively applied? Is this good bye to Ranum?

Posted by: Don C. | Feb 26, 2005 11:59:17 AM

Is it me, or is there a pretty glaring error in Judge Kanne's dissent? He says that the sentence in Fanfan was UNCONSTITUTIONAL, even though it did not violate the Sixth Amendment. I understood Justice Breyer's handling of Fanfan to mean that the sentence was ILLEGAL (because it was imposed under a mandatory system), but not UNCONSTITUTIONAL. Am I missing something?

Posted by: Steve | Feb 26, 2005 2:58:19 PM

I am a current Federal Defender Panel Attorney in Chicago, a former federal prosecutor here, and a current adjunct professor teaching Federal Courts. I obviously read Judge Posner's opinion with great interest, and like the middle ground he's carved out that's close (but--he's quick to add--not identical) to Crosby. It's very practical, insofar as it does not require a full remand to the district court in every case for resentencing. In addition, it's very true to what I think is the appropriate plain error analysis.

Judges Ripple and Kanne raise important concerns in their dissents, but I think they can be addressed by conscientious district court judges. As long as district judges ask themselves truly and honestly on limited remand whether they would have sentenced defendants the same or differently under the now-advisory guideline regime, I'm not sure we have anything to worry about under Paladino. Ultimately we have to trust district judges to do the right thing anyway. Why remand every single case for resentencing under Booker if district judges already know they are going to reach the same result?

Posted by: James A. Shapiro | Feb 26, 2005 8:11:02 PM

One answer to the last comment is this: how can a judge know if he or she will reach the same decision in the absence of a sentencing hearing at which counsel advocates for a particular sentence that considers all of the factors listed in 3553(a), as Booker now requires? Lawyers who focused only on the guidelines before Booker are making very different kinds of sentencing arguments after Booker. How can a judge know whether those new arguments will influence the sentence if the judge doesn't bother to hold another sentencing hearing?

I heard Judge Kanne ask at an oral argument last week whether this limited remand might encourage judges to say that the sentence wouldn't change, just to avoid additional work. To what extent Judge Kanne was joking is unclear, but I think the question is legitimate.

Posted by: TChris | Feb 28, 2005 4:20:52 PM

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Posted by: | Oct 14, 2008 8:16:33 AM

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