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March 2, 2005

Suspect Seventh Circuit standards?

Bill Theis has this extended post at the Seventh Circuit Blog raising a series of thoughtful questions and concerns about the recent plain error work of the Seventh Circuit it Paladino and Lee (discussed here and here).  In addition, a few readers and the comments here have suggested that Judge Posner's statement in Paladino that a trial judge "must justify departing from the guidelines, and the justification has to be reasonable" indicates that the Circuit ascribes to Judge Cassell's view of the guidelines still having heavy weight post-Booker.

March 2, 2005 at 08:41 AM | Permalink


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I am only now very interested in the law, especially Criminal Law, because my best-friend was convicted and senteced to 24yrs for having sex w/ a 17yr. old. I feel his sentencing is wrong and cruel. Especially knowing the facts and how her own parents testified on his behalf cause he wasn't her first older encounter!
I'd like to know more about this new law. Thank you for all your work on keeping us informed.

Gabriela Muñoz

Posted by: Gabriela Muñoz | Mar 2, 2005 2:16:31 PM

It seems to me that in light of 3553(c)(2) (requires a statement of reasons if outside the Guideline range) and 3742(f)(2) (applying the reasonableness standard to appellate review when a sentence is outside the Guideline range) that Judge Posner is doing nothing more than stating the obvious requirements of the SRA.

Posted by: Thomas J. Yerbich | Mar 2, 2005 6:45:05 PM

There is no statutory basis for the presumption of guideline sentencing articulated by Judge Posner (or by Judge Cassell) and in fact it is contrary to the apparent meaning and structure of 18 USC 3553(a). A statement of reasons is required by sec 3553(c) for every sentence, not just those outside the range. To the extent that subsection (c)(2) (or sec 3742(f)(2)) were construed to create a presumption of in-guideline sentencing that requires a specific finding to overcome, the court would render 3553(a) and (c) unconstitutional on the same basis as 3553(b) was held unconstitutional in Booker. To me (as a federal appellate defense attorney) it follows from this line of reasoning that Judge Cassell (and those who follow him) are necessarily mistaken.

Posted by: Peter G | Mar 2, 2005 10:19:36 PM

Just a quick question: is there an 11th circuit blog?thanks!

Posted by: mary | Mar 2, 2005 11:32:04 PM

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