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August 12, 2005

The limits of a limited plain error remand

An interesting little decision from the Seventh Circuit today highlights the important distinction and consequences of the "limited remand" approach to Booker plain error adopted by the 2d, 7th, 9th and DC Circuits as opposed to the "total remand" approach adopted in other Circuits (namely the 3d, 6th and partially in the 4th).  In US v. Re, No. 03-2089 (7th Cir. Aug 12, 2005) (accessible here), after an initial order of a limited remand, the defendants submitted evidence of post-sentencing events and conduct which the district court said might impact what sentence he would now think appropriate.  But, explained the Seventh Circuit in Re,

in a Paladino [limited] remand the conduct or circumstances that bear on the § 3553(a) factors must have been in existence at the time the original sentence was imposed. In this case, the § 3553(a) factors raised by the defendants all involved matters occurring after the date of sentencing. The goal of the Paladino remand is to determine if, at the time of sentencing, the district judge would have imposed a different sentence in the absence of mandatory guidelines. Post-sentencing events or conduct simply are not relevant to that inquiry.

I am pretty certain that in circuits ordering total Booker remands even in plain error situations, post-sentencing events and conduct not only may be, but actually must be, considered by the district court in the course of a full Booker resentencing.

August 12, 2005 at 12:43 PM | Permalink


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In the first circuit, original sentence with downward departure was appealed by govt, overturned, remanded, new longer sentence was issued, appealed by defendant, sentence was stayed, defendant released on personal recognizance. Appeal was won and the sentence vacated Aug 10th on Booker grouds. Plain error was found. Are you saying that conduct between original sentence, fully served, and now can be a basis at resentencing? Thank you

Posted by: Suzanne | Aug 13, 2005 10:12:55 AM

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