*1 resentencing light opinion of this as well opinion
as the Court’s Booker.
UNITED of America, STATES
Plaintiff-Appellee,
v. PALADINO, al.,
Robert D. et
Defendants-Appellants. America,
United States of
Plaintiff-Appellee,
Randy Velleff, Defendant-Appellant. America, States
Plaintiff-Appellee, Peyton, Defendant-Appellant.
John America,
United States of
Plaintiff-Appellee, Turner, Defendant-Appellant.
Darrell 03-2296, 03-2383,
Nos. 03-2386,
04-1951, 04-2339, 04-2378. Appeals, Court
Seventh Circuit.
Argued Feb. 2005.
Decided 2005. Feb.
Jеffrey P. Singdahlsen (argued), Depart- Justice, Division, ment of Criminal Appel- Section, DC, late Washington, for inU.S. No. 03-2296. Felton, Justice,
Kathleen Department of Counsel, Office of the General Washington, DC, Jeffrey P. (argued), Singdahlsen De- Justice, partment Division, Criminal Ap- Section, DC, pellate Washington, for U.S. 03-2383, 03-2384, 03-2385, in Nos. 03-2386. appeals doctrine plain-error Lang, tion (argued), Michael Bindi David E. federal IL, under the from sentences rendered Chicago, Attorney, of the U.S. Office sentencing guidelines before 04-1951. No. for U.S. advisory rather they are ruled Court Chambers, Murphy, Bradley W. Tate K. pres of the cases mandatory. Three than (argued), Office A. Keith
Thomas well, and we nonsentencing issues ent Peoria, IL, for U.S. No. Attorney, U.S. begin with them. 04-2339. (argued), Office T. Grimmer William codefendants were Paladino and his IN, Bend, Attorney, South the U.S. variety of federal by jury convicted in No. 04-2378. U.S. to defraud *4 arising out of a scheme crimes fleecing that succeeded $11 investors A. (argued), Thomas Blegen Patrick W. victims. The scheme had from the million IL, Roberts, Chicago, Durkin, & Durkin second, which only the stages, but two D. Paladi- Defendant-Appellant Robert for non- generates to from 1995 lasted no. lies, whose sentencing Defendant issues. Covington, Hanley (argued), Patrick J. investors, to function was to recruit Monica lies. KY, Defendant-Appellant for returns —more promised she absurd whom IL, (argued), Chicago, Collins Gerald J. week for at least percent per than Law. Randall W. Defendant-Appellant for variety represen of false weeks—made IL, (argued), Chicago, significant Plant to her M. one most Kaaren tations. The (who Ben- Daniel B. Defendant-Appellant that James Wardell appeal for she and indicted) were son. died before he could ad- experienced investment reputable and Levinsohn, & Lev- Holzman J. Michael guilty to pleaded In fact lies had visors. IL, Defendant-Appel- insohn, for Chicago, fol in 1988 and the charges fraud federal Frank L. Peitz. lant banned the SEC lowing year had been Foley Hickstein-Foley (argued), Donna of the with members associating ever from IL, Defendant-Ap- Chicago, for Foley, & had industry, while Wardell securities Randy Yelleff. pellant theft in a court of been convicted state (argued), F. Taseff Office George to and in 1972 had consented fraud in IL, Defender, Peoria, for Federal Public forbidding him to violate order an SEC Peyton. John Defendant-Appellant and sale laws the offer federal securities in which he had corporation in a of stock Bend, Lenyo (argued), South S. Mark per government was involved. been Tur- Darrell IN, Defendant-Appellant for acts” prior all these “bad present mitted to ner. argue that lies and jury, to the also POSNER, WOOD, and Before conviction SEC knew about Wardell’s WILLIAMS, Judges. Circuit her, order, had told though all Wardell bar Informed her him of own SEC when she POSNER, Judge. Circuit too, order, he, prob had had that bar sever decision have consolidated We lems with the SEC. day, the same appeals, argued al criminal 404(b) Rules of the Federal Rule key open left present the issue all of which of a use of evidence Evidence forbids the in United decision by the Court’s - illegal or unethical U.S. -, history defendant’s States person bad (2005) that he is prove acts to applica —the likely character and therefore to have com fail to volunteer such information would be mitted the crime of which he is accused in only fraud if potential investors would as- present case, other, or perhaps some sume that someone soliciting an invest- undetected crime for which he should be ment would disclose such history. We punished. argues that it doubt would be a reasonable presented the evidence of Iles’s and War- assumption, and in any govern- event the dell’s bad acts for the innocent reason ment made has no effort argue that it those acts “inextricably were so inter would provide cases support twined” with the conduct of which the expansive its notion of fraud. defendants were accused this case that It (which is true that a fiduciary lies jury needed to know the acts in bad was, as we’ll see when we come to the order to form complete picture of that issues) is required to disclose v. Spaeni, conduct. facts material to his principal, e.g., Carr Securities, Inc., CIGNA Ramirez, 547- 1102-03 Cir. (7th Cir.1996); Szur, 1995). Such evidence can be proper to Cir.2002), jurors enable the to make sense of the *5 true too that materiality implies merely evidence pertaining to activity the criminal that disclosure would of make which the a difference defendant to currently ac cused, decision, the principal’s Gibson, United Basic States v. Inc. v. Lev 170 F.3d inson, 224, Cir.1999), 231-32, U.S. and to puz avoid zling them Industries, by making (1988); L.Ed.2d 194 them think that TSC Inc., Inc. v. Northway, facts important to their understanding 438, 449, of the case are being concealed. But S.Ct. (1976); those- Cas were not problems here. tellano If Young Rubicam, Inc., & jurors never anything heard about Iles’s and F.3d Cir.2001), and that most previous troubles, Warden’s legal it would principals if they learned that their fiducia not have occurred to them they that were ry had convicted of been fraud would tell missing anything or any have made him to take a walk. pushed to its other in evidence the case unintelligible. extreme, logical this reasoning would have required lies to preface every conversation government’s
The fallback position is with a customer with a detailed recitation stronger-that Iles’s failure to disclose of everything in personal her history that Wardell’s and her histories part was of might him, or discourage alarm pain scheme. But on of over- punishment criminal reaches that arguing anyone intentionally she who soli- left something cits an out. required, investment is It would pain also make a of person criminal liability so, for had failing to do who ever been convicted of any disclose previous fraud, leper fraud a business, conviction for investment or for that anything matter even if might else she had not that been barred from the give аn investor cold feet. If industry. asked
investor
such things,
about
the solicitor
would have
give
a truthful
pursue
issue;
need not
answer or be
We
this
for
guüty of
E.g.,
fraud.
States v.
what is
incontestable is
history
that Iles’s
Tadros,
310 F.3d
is evidence that
representations
she
Ross,
potential
1543 made to
really
investors
(7th Cir.1996); United States v. Kinney, misleading. She had represented to them
(2d Cir.2000).
17-19
But to
that she was both reputable and experi-
that mon-
whether he knew
implied that
innocence was
enced,
by doing so had
money
account was
of in-
record,
certainly
ey
in a certain
a clean
she had
(“invested money” or “investment
from the securi-
vestors
barred
had not been
she
earli-
as it was received
money”)
life almost a decade
as soon
ties business
—which
criminal fraud.
to him and the other
er,
checked out
being
after
convicted
was
misleading
being invested—
representation
without ever
made
defendants
What
history;
history
was
legitimate transactions
precisely
proceeds
her
was
guilt
(“trаde
rather
deposition
direct evidence
at the
money”).
therefore
Asked
character.
merely of bad
knowledge
than evidence
of the invested mon-
about his
Polichemi, money
“I
this
ey, he said:
learned
(7th Cir.2000).
mon-
coming
that’s been
was investment
I
totally surprised
I
ey, and was
however,
not,
The
should
time that
this was
assumed this whole
legal
of Wardell’s
permitted the evidence
money.”
government put
pe-
trade
evidence
troubles to come without
money” and deleted
riod after “investment
All
them.
War-
actually
lies
knew about
of Paladino’s answer. The differ-
the rest
problems
that he had had
dell told her was
“I
“I learned” and was sur-
ence between
Many members
the secu-
with the SEC.
potentially
subtle but
prised to learn” is
problems
have had
with
rities business
surprised
if Paladino wasn’t
importánt;
being
in their
that did not result
SEC
money
being
learn that investor
mis-
does
from the business.
SEC
barred
suggest
that he had
applied, this would
against ev-
proceedings
remedial
bring
not
fraud,
knowledge of the
which he
рrevious
investigates
and it does
eryone whom
denied.
proceedings that it
prevail
in all the
*6
to
bring. Anyone
had
defend
does
who
There were other harmful deletions.
acknowl-
against
agency would
himself
the
deposition
example,
during
For
handed
his
it even if
edge having
problems
had
with
program agreement,”
a “secured investor
judge’s er-
he had
exonerated. The
been
added
-said it “looks familiar” but
Paladino
however,
harmless,
ror,
because the
was
it until after
the
that he hadn’t seen
lies, especially
light
against
evidence
the
had filed
scheme had ended and
SEC
previous
that her own
fraud
our conclusion
government
the
suit. The
allowed
the
judgments
properly placed
before
though,
to delete the addition even
since
jury,
compelling.
was
depended on what he knew
guilt
Paladino’s
when,
the
the date on which he first saw
complains
Paladino
Defendant
document was crucial.
by an
he was forced to take the stand
permitting
government
the
to make
evidentiary ruling.
erroneous
He had
deletions,
misleading
deposed years earlier in an SEC this and other
been
106,
trial
Fed.R.Evid.
which
and in the criminal trial the
violated
proceeding,
case,
on this
government
present
provides,
to
so far as bears
allowed
severely cropped
deposition
party
version of the
when one
introduces
evidence
“may re-
guilty
part
writing,
opponent
in an
to demonstrate his
of a
his
effort
any
quire the introduction... of
other
knowledge. Some of the deletions were
ought
.'which
in fairness to be con-
required
protect
rights
in order to
part..
Bruton v.
defendants,
it.”
contemporaneously
sidered
with
See
the other
see
Glover,
v.
20 United States
88
391 U.S.
S.Ct.
(7th
(1968),
Cir.1996);
An
L.Ed.2d 476
but not all.
issue
1189
Walker,
(7th
Cir.1981);
Unit-
478 that he had known police to the likely admitted TV, not likely it or is might see on car, he was and since gun was prints handguns”-to find latent on which possession he unlikely. driving thе car was that it was answered the officer believed, that, he he was The fact gun. inquiry had to do this line What was irrele- gun there placed had That there obscure. guilt is Peyton’s with you gun and If vant. someone hands simply meant evidence fingerprint nowas it; you possess your pocket, it in you put evidence. fingerprint was no there See United it is the same here. and on found fingerprints been Peyton’s Had 715, Lane, 718-19 v. 267 F.3d States gov helped have this gun, would Wetwattana, v. United States fingerprints if someone else’s and ernment (7th Cir.1996); United F.3d 283-84 this would gun, found on had been Garrett, 1105, 1110-11 v. States testified he Peyton helped have Teemer, v, (7th Cir.1990); States United no to his car. Since had that others access (1st F.3d found, neither side was fingerprints were it difference we can’t see what helped; and charged possess Turner was with fingerprints to find makes whether failure January on ing a revolver In fact or uncommon. gun on a is common crime, and also with drug furtherance devel extremely common: “successful is day in on the same shotgun possessing on firearms is diffi prints of latent opment crime. He drug another furtherance of reality, very few identi cult to achieve. sentences separate, received consecutive firearms, are found prints fiable latent under 18 U.S.C. the two crimes in both a fact that has been discussed 924(c), carrying punishes using or § which judicial system.” Clive and literature to” a “during in relation a firearm Klasey, “Factors Darrell R. A. Barnum & trafficking drug “crime of violence Prints on Recovery of Latent Affecting the Cappas, crime.” Prosecutor, Jan./Feb.l998, p. Firearms,” (7th Cir.1994), that the 1187, 1190-91 holds 32. actually by that statute offense defined or in guns during use of one or more issue, rather,- is whether offense, so had Turner drug to a relation reinforcing, in fact clarify, seeking to one offense he would witness, guns during used two testimony of a only one violation guilty been jury that he signaled to the district 924(c). United States section See also guilty. Such thought the defendant was (7th Cir.2000); White, United States signaling improper. (7th Cir.1999); Taylor, 13 F.3d 992- Martin, F.3d (6th Cir.1994); v. Lind Kibort, Collins v. *8 (2d 666, Cir.1993); Davis, Unit 674 Cir.1998); say, 285 985 F.2d v. Smith, 889, F.2d 894-95 Cir.2002); 378, (5th ed States United F.3d 381-82 Cir.1991). (9th charged was with 414, But he Tilghman, 134 F.3d States v. crimes, commit drug albeit (D.C.Cir.1998). separate two question since the involving gun day, the same each guns ted on fingerprints are found on how often (different signifi that is of no guns, though Peyton’s relevance to was of no actual cance). with a morning, armed In jury was that the guilt, it is hard believe In revolver, person. crack to one in he sold though judge’s swayed, gratuitous afternoon, shotgun, he with a event, armed the evi any tervention was. were conclusive, person. These crack to another so sold Peyton’s guilt dence of offenses, drug separate unquestionably Peyton harmless. judge’s error was carrying and therefore his of a gun during did not make the argument. may He well each of them constituted two violations of good have had tactical reasons. Without 924(c). section Compare United States v. meaning prejudice Peitz’s claim should Cappas, supra, 1190; 29 F.3d at United he choose to make it the basis of a motion Johnson, 1360, States v. 977 F.2d 1376-77 § under 28 U.S.C. we remind him (10th Cir.1992); Privette, United States v. that a defendant who sets motion a train (5th 947 F.2d 1262-63 He foreseeably events inflicting losses that complains that the instructions did not in fact materialize escape cannot responsi clearly require jury to gun tie each to bility by quitting, by let alone being ex drug They different transaction. indeed from, pelled the conspiracy. United States unclear, but the un- evidence was Patel, (7th equivocal any and so error in the instruc- Schweihs, 971 F.2d tions was harmless. (7th Cir.1992); 1323-24 United States v. Melvin, Cir. only issues;
Velleff raise's
sentencing
1996).
and so it is to
pre-
issues
by
sented
these
appeals
consolidated
The issue is not whether reporting
we now turn.
begin
We
with Paladino
the conspiracy to the authorities is the
and his codefendants. He was sentenced
only way of withdrawing
conspira
from a
to 72 months in
and also
prison
ordered to cy; it merely
way.
one
United States v.
pay
million,
$ll-plus
restitution of
as were Pandiello,
Cir.
his co-defendants.
lies was sentenced to 1999);
Patel,
position of on the basis of facts not definitively, to participate. Such cessation by jury. determined may may not be effective withdrawal contends, and agree, that under the sense, laya but this is places one those guidelines regime by overthrown Booker whеre special the law uses a word in a the sentences would have been lawful. sense. yourself You do not guilt absolve only
There are two chal of bombing by serious walking away from the lenges to the enhancements. ticking similarly One And bomb. the law will Peitz, who claims that lawyer gave his trial your not let you wash hands of a danger him ineffective assistance to ar failing you ous scheme set in motion gue that he should not be responsible for and that can to operate continue and cause *9 acts coconspirators committed his by great with your harm without partic continued in the scope conspiracy after he ipation.” was 879 F.2d at By 294. communi expelled from it. premature, The claim is cating his withdrawal to other mem the because there is no affidavit or evi conspiracy, other bers of conspirator might the a dence lawyer from the indicating why he so the conspiracy, frighten weaken or so
480 alcohol, his amicably with living ing from that hе prospect the with conspirators counseling wife, steady job, and holding a in an effort authorities go to the
might following in his crimi- avoid liability, as to undermine his children his own reduce his criminal footsteps, on and also that nal neither informed conspiracy. Peitz the proclivities history his recidivist government that the overstated so conspiracy the been crimes had conspirators prior most of his the other apprehend could The inflicting spree. during single it from a prevent committed by doing so cross-appeal the that argued conduct had set in its own government the losses that his such, departure measure a for, any justify other not nor took the did stage facts may he re- and so and this be conspiracy; range, guidelines the from the weaken decide) inflict- (we losses foreseeable under the mained liable for not correct need expulsion. after his conspiracy guidelines the by prevailed ed the when rules that we know that mandatory. But now were to an enhancement challenge The other and so the advisory, are guidelines the finding that lies, challenges the by is who whether, judge again the question find- of trust. The position abused a she on the Peyton to months resentenced invited that on evidence she ing is based origi- on which he based ground same entrust her with investors to potential sentence, on the reverse we would nal that it would money, assuring them their was 180-month sentence ground that the By establishing hands. in her be safe sentencing new unreasonable. Under she ac- relationship with them fiduciary justify departing must judge regime abused, trust that she position quired justification and the guidelines, from the Frykholm, as United reasonable, cannot think has to but 604, 612-13 Pey- 15-year for on basis sentence what to 180 months Peyton was sentenced sentenced, ton, when years old who was because of statutory minimum prison, the unreasonably The thought short. could be by the his recidivist status determined academic, cross-appeal since the issue is to the sen only challenge judge. trial His But for future refer- dismissed. has been underlying the de facts tence is there are cases noting it worth ence by of that status were found termination can certain.that in which one jury, and the by than rather sentence given different would not Harris v. United fails under challenge guidelines if he had realized that even S.Ct. advisory.. merely (2002); Almendarez-Tor cf. L.Ed.2d States, 523 U.S. res months in was sentenced to Turner (1998). S.Ct. the sen- portion of prison. A substantial complaining cross-appealed, judge, findings by tence was based on judge’s departing downward about quantity jury, regarding not the but to 293 range of guidelines, from the circum- other crack he had sold and minimum, statutory but months to the sen- crime. of his Velleff stances and we appeal later moved to withdraw robbery and for tenced to 430 months granted the motion. the time drug gun offenses. Some ato recidivist enhancement departed down- was due district had did not overrule which Peyton had affected ward on two grounds: Almendаrez-Torres, was based but some evidence of rehabilita- provided impressive mandatory provisions of tion, he free during year which was guidelines. sentencing, to his abstain- prior on bail
481
judgments
Had the
1584,
become final before
(1982);
Johnson
a broad one.
normally
range
the
is
the canoni
and
468-70, 117 S.Ct.
at
U.S.
the
notably where
exceptions,
plain-error
of the
There are
statement
cal modern
then,
prison;
that
“substantial
death
standard,
suggests
choice is between
rather
simply important
U.S.
mean
in Jones v. United
may
as
rights”
“fair
and that
rights
402-05,
known the merely adviso ry, (and only practical he’s told us it way would have it your happens shortest, been—but tough luck also to be the the easi you’ll just est, have to stew in prison quickest, for 60 way) the surest additional months because of an acknowl determine whether plain the kind of error edged violation of the argued Constitution —would in these actually cases has oc fairness, undermine the the integrity, and curred is to ask judge. the district We 3553(c).” therefore, explanation, § appropriate with the Second Circuit’s see agree, Crosby, 397 F.3d Id. ruling in (2d Cir.2005), appel- what an procedure Our is not identical to that set do Booker cases
late court should
Crosby, though
very
forth in
it is
close.
difficult
us
determine
which
Crosby
va-
envisages the district
*13
is,
prejudicial while
whether the error was
judge
cating
originаl
the
sentence
the
jurisdiction
appeal,
of the
retaining
order
to
the
wants
resentence
defendant. Under
the
permit
limited remand to
jurisdiction
procedure,
our
since we retain
(if
whether he would
judge to determine
remand,
throughout
shall
the limited
we
resentence) reimpose
origi-
his
required to
upon being
notified
vacate the sentence
nal
also
sentence. See
judge
imposed
that he
the
would
have
Williams,
If
Booker,
proviso
at
765.
in Booker had remanded
case
Court
the
reimposition of the
important;
the mere
resentencing.
ruling
in so
original
does not insulate it from
sentence
Sixth Circuit overlooked the fact that the
appellate review under the new standard.
argument
had waived the
that
appeal
governed by
Booker’s
If,
hand,
judge
on the other
standard,
plain-error
as"we had noted in
states on limited remand that he would
Booker,
Supreme
our decision in
which the
imposed
have
a different sentence had he
Court affirmed. United States v.
merely adviso
guidelines
known the
were
(7th Cir.2004).
ry,
original
we will vacate the
sentence and
Supreme
ruling, express
Court made no
resentencing.
formulating
remand for
implied,
proper
plain-
standard of
(whether
judge’s
the statement
conclu
analysis
error
in cases such as this.
would,
not,
sion is that he
or would
adhere
sentence),
Circuit,
to
original
agreeing
“the District
The Eleventh
while
counsel,
impossible
Court should obtain the views of
with the Second that it is
for a
at
in writing,
require
reviewing
least
but ‘need not’
court to know what sentence a
Defendant,
presence
Fed.
judge
given
see
district
would have
had he
43(b)(3).
reaching
R.Crim.P.
its
Upon
guidelines
merely
de
known the
adviso
(with
hearing)
ry,
cision
or without
whether
concluded
this means that a defen
resentence,
to
Court should dant in
a case cannot
District
such
show
place
affected;
either
rights
on the record a decision not
substantial
have
can
been
resentence,
not, therefore,
appropriate explana
with an
plain
establish
error. Unit
tion,”
Crosby, supra,
Rodriguez,
397 ed States v.
when Booker was decided are entitled to Is this the course that resentenced, even when it is clear that expected Court pro- would follow its the judge impose would the same sentence nouncement in Booker? Are we to attrib- of appeals and the court would affirm. ute to the Court a desire that the Nation’s summarize, To we affirm all the convic- intermediate appeals courts of develop *14 sentence; Peyton’s tions and we direct a approaches elaboratе and diverse to Book- limited of remaining remand sentences are, er ’s holding. doubt, There no times in procedure accordance with the set forth Supreme when a Court decision is intend- above, retaining appellate jurisdiction. thus encourage ed to intermediate appellate opinion
Because this establishes a new courts to address unresolved issues and for circuit, rule for the it was circulated to the the intermediate courts’ resolution of those court entire before issuance. 7th Cir. R. percolate issues to to Supreme Court. 40(e). All but two members of the court in But the situation presented by Booker is regular active service voted not to hear the hardly one. The entire federal criminal Judges Ripple case en banc. and Kanne justice system came to a standstill antic- voted to hear it en bane. ipation of the Court’s decision Booker. ruled, Now that the Court has it is time to RIPPLE, Judge, dissenting Circuit from implement immеdiately its decision— the denial of rehearing en banc. forthrightly. In the few short weeks since the Su matter, then, As a threshold ought to preme Court’s decision in United States v. pause and reflect on the reason for this - U.S. -, plethora of approaches, diverse churned (2005), L.Ed.2d 621 appeals courts of by out pace the courts at a that obviously across Country produced signif precluded has the sort of reflection and icant opinions setting number of forth a open collegial ought consultation that to be spectrum approaches broad of designed part parcel process deciding of the of implement Supreme Court’s decision. an appellate case. panel opinion The before us sets forth the holdings generation of the first possible judicial of those One reason for such a presents various cases and pattern then a variation novelty behavior would be the of Today’s panel оpinion However, of one. Supreme thus initi Court’s decision. generation ates the second post of -Booker we are confronted with such a once-in- opinions, variations on the themes a-century set situation. The situation before forth in the first generation opinions. us is not unique: simply imple- We must doubt, equinox No before the vernal ar ment a decision that holds that the sen- rives, generation opinions these second tencing procedure employed will in the federal produce a further variation and a third courts is unconstitutional because it denies generation opinions will upon right jury us. to a trial. are asked to We Complexity complicate complexity. will see illegally that individuals sentenced to companies that produce reports prison are of the relieved burden of serv- panel crafted than -the one under such an device imposed
ing
sentence'
opinion.1
system.
unconstitutional
an enfeeblеd
mandating
In
addition'
view,
formulated
approach
my
correcting of the uncon-
for the
mechanism
infirmi-
basic
from two
panel
suffers
by the
process identified
Su-
stitutional
convincingly
Kanne
First,
Judge
as
ties.
Court,
has
panel opinion also
preme
out,
“quick look”
the abbreviated
points
rigidi-
a new
into our decisions
introduced
hardly a
court is
of a district
required
to our formulation of the
ty
respect
with
sentencing process
for the
substitute
I
rigidity that
fear
plain error doctrine —a
is man-
now has said
Court
Supreme
regret
long after the
my colleagues will
Constitution.,
the dis-
Until
by our
dated
memory.
“Booker cases” are a faded
a new
trict court undertakes
recognized that
Court has
freedom to im-
process cognizant
—
every
“[njormally, although-perhaps not
appropriate
any sentence
deems
pose
case,
specific
must make a
the defendant
range and
guidelines
long
applicable
as the
satisfy the ‘affect
showing
prеjudice
3553(a)
are consid-
§
factors
the U.S.C.
of Rule
rights’ prong
ing substantial
accurately
cannot
district court
ered —the
Olano,
52(b).”
U.S.
its discretion
and how
whether
assess
725, 735,
S.Ct.
123 L.Ed.2d
*15
holding
panel’s
ought to be exercised.
(1993)
However,
supplied).
(emphasis
pre-
and to
pre-judge
court to
requires the
required
specific showing
this
have never
it has not heard. Sen-
evaluate evidence
in circumstances in which the
prejudice
raise
is-
tencing after Booker will
subtle
a constitu
error has denied the defendant
emphasis ought
much
sues as to how
tionally-mandated process and when
circum-
facts and
given
particular
cannot be known
process
outcome of that
accomplished
task can be
stances. This
actually
place.
process
until
takes
hearing witnesses
only after
competently
Rather,
contexts,
we have ordered
such
short,
what
seeing
and
the evidence.
possibility
a
ex
resentencing when distinct
judicial
for the usual
panel
substitutes
the error influenced the district
ists that
unconstitutionally-imposed
an
reaction to
particular
of a
sentence.
court’s selection
simply
is inade-
process
sentence is a
instance,
sentences
For
we have remanded
quate to the task.
erroneously
overlap
in the
of an
fell
instances,
process
many
In all too
sentencing range and the correct
applied
“
serve as an
scripted by
panel
will
have reason
guidelines range,
‘unless we
only
give
court to
invitation for the district
that the error did not affect the
to believe
unconstitu-
superficial
look at the earlier
particular
court’s selection of
district
”
States,
The constitu-
tionally-imposed sentence.
sentence.’ Emezuo United
by
(7th Cir.2004)
hardly
at
is vindicated
right
(quoting
tional
stake
Unit
by
Wallace,
looks-all-right-to-me
assessment
ed
32 F.3d
Indeed,
Cir.1994));
Sofsky,
we wanted
busy district court.
see
Cir.2002)
judicial
(relaxing
collective
feet
drag
our
287 F.3d
decision
error review
rigorous рlain
that the
Court’s
the otherwise
ensure
(a
unobjected
I cer-
correct
error be
impact
had minimal
motivation
standards to
sentencing my colleagues), it
the error related to
tainly do not attribute to
cause
prior knowledge that
a better
the defendant lacked
up
difficult to come with
would be
Williams,
ground that it avoids
partially
éedure
on the
1.
Cf.
burdens).
(2d Cir.2005) (defending
pro-
administrative
a truncated
sentencing
the erroneous
plain
condition would for
error
review is to reduce the
imposed);
United States v. Plaza-Garc
judicial
burden on
system.
See John
ia,
(1st
Cir.1990)
son v.
461, 468, 117
(vacating
plain
sentence under the
error
(1997).
S.Ct.
It is
doctrine
fell within incorrect and cor
indeed difficult to see how the odyssey on
guidelines range
rect
sentence
panel
which the
now sends
any
us will do
“may well have
been influenced
thing other than tie us in knots.2
recommendation”);
[erroneous]
requires
Booker
a simple, direct remedy
Reyna,
see also United States v.
358 F.3d to
those harmеd
the unconstitutional
(5th Cir.2004)
344, 351
(presuming preju
procedure of former times. We would
dice when the district court failed to allow
justice
best serve
by implementing the
allocute,
defendant to
because of the na Supreme Court’s
quickly
mandate
and effi-
right
ture of the
difficulty
prov
and the
ciently. I respectfully dissent.
ing the violation
specific
affected a
sen
tence);
Adams,
KANNE,
Judge,
Circuit
dissenting from
(3d Cir.2001) (same).
the denial of rehearing en banc.
panel
today
decision
offers a super-
I concur
aspects
with all
panel’s
ficially pragmatic, but not a principled,
opinion issued today except
pro-
for the
—
for adopting
basis
its novel approach to posed
remedy
mechanism to
the unconsti-
plain
analysis. Particularly
error
trou-
tutionally imposed sentences.
I believe
bling,
long-term
terms of its
impact, is
the sentences must be vacated and
delegation
to the district court of our
remanded to the district
courts
resen-
judicial rеsponsibility to
plain
evaluate
er-
tencing
light
of Booker.
independent
ror on an
basis. See United
*16
Booker,
In
Supreme
the
Court stated
Benitez,
Dominguez
States v.
that
resulting
enhancements
judge-
from
2333, 2340,
(rather
admitted)
jury-found
found
than
(2004) (“A
satisfy
defendant must thus
the
facts violate the Sixth Amendment. 125
”).
judgment
reviewing
the
court
....
S.Ct. at 755-56.
Importantly, Booker’s
Indeed, even
“pragmat-
when viewed as a
companion petitioner, Fanfan, had received
Booker’s, mandate,
ic” response to
a sentence that did not violate the Sixth
panel’s hastily
procedure
constructed
falls
Amendment but was nonetheless deemed
on
panel
its own sword. The
never tells us
unconstitutional
imposed
plans
what it
to do with cases in which
mandatory
under a
regime.
Guidelines
Id.
retirement, disability or death has made
Any
at 768.
sentence handed down under
impossible consultation with the district
mandatory
guideline regime is unconsti-
judge
imposed
who
the unconstitutional
tutional. The solution
pan-
selected
sentence. Even when such consultation is
(a
remand,
el
limited
simply asking the
possible, our case tracking computer pro-
district judge whether there was a “mis-
grams
get
workout,
quite
will
and we
carriage
justice”)
fully rectify
does not
certainly shall see another New Year come
problem.
this
go
and
before this
longer
situation no
im-
pedes
regular
our
world,
work. The
post
-Booker
sentencing
Court has told us that one of the
judges
reasons
weigh
discretion to
a multi-
Williams,
(criticiz-
2.
guides larger than it was
pre-Booker, and defendants should have opportunity argue these factors
full resentencing hearing and have them only way
reflected in the record. It is the
to know whether a different sentence