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April 7, 2005

Interesting 7th Circuit remand where Blakely error preserved

The Seventh Circuit in Paladino has provided for "limited remands" in plain error cases, but today in United States v. Schlifer, No. 04-3398 (7th Cir. Apr. 7, 2005) (available here), the court took another approach in a pre-Booker case in which the defendant had preserved a Blakely challenge.  And, along the way, Schlifer covers a range of post-Booker issues.

In Schlifer, the court first rejected an argument that the judge had no authority to decide whether the defendant was a career offender based on a finding that prior offenses were "related."  Relying on the prior conviction exception, the Seventh Circuit states there is "no precendent for parsing out the recidivism inquiry."  But thereafter the Schlifer court rules that he defendant was still entitled to a new sentencing hearing on Booker grounds.  With the Blakely error preserved, the Court rejected the notion that the remedy was a limited remand under Paladino.  It also rejected the government's argument that any error was harmless because the sentencing judge had downward departed based on substantial assistance:

This argument has some facial appeal, but it ignores the fact that a sentencing judge, prior to Booker, had the guidelines and the appellate standard of review in mind when fashioning a departure.  A departure decision, even if "discretionary," was nevertheless informed by the guidelines and thus sheds little light on what a sentencing judge would have done knowing that the guidelines were advisory.

Interestingly, in rejecting the harmless error argument, the court suggested that, though the district court had denied a downward departure on the ground that the defendant was manufacturing drugs primarily for his own use, "the court might have granted the very same motion had it known that Booker effectively allows greater latitude in making departure decisions."  This language might be read to suggest that the Seventh Circuit thinks that Booker gives district courts more authority to grant "departures" even if the "heartland" standard for a departure is not satisfied, although the Court's may have just used an inexact phrase for noting that judges now have authority to "vary" as well as to "depart" from the guidelines.

April 7, 2005 at 02:30 PM | Permalink


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I continue to be astonished by these circuits open defiance of Shepard's Part III. Whatever else Shepard stands for, it expressly distinguished between "the fact of a prior conviction" and a "fact about a prior conviction." Those are Souter's words in the controlling opinion, not mine. For the Seventh Circuit to cite Morris for the proposition that all "recidivism" inquiries fall within the "prior conviction" exception utterly ignores the express holding of the Supreme Court. And as this blog reveals, the Seventh Circuit is not alone in this "error". In the proper case, this should be a basis for summary reversal.

Posted by: R/W | Apr 7, 2005 9:59:58 PM

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