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HERNANDEZ v. CITY OF CHICAGO

United States District Court, N.D. Illinois, Eastern Division


October 12, 2004.

EMILIANO HERNANDEZ, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation, et al., Defendants.

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION AND ORDER

Currently pending before the court is plaintiff's petition for attorneys' fees. Plaintiff also has filed an additional motion requesting a full fee award, citing Sheriff Michael Sheahan's repeated refusal to comply with Local Rule 54.3, which requires the parties to attempt to reach agreement on an appropriate amount and, in the event of disagreement, requires specific objections to specific aspects of the claim for fees.

Exhibit VIII to plaintiff's fee petition is the "Parties' Joint Statement Regarding Attorney Fees." In that statement, the Sheriff asserts: "[Plaintiff's counsel] Mr. Longo complains that the Defendant has not followed the Local Rules regarding specific objections to time entries. Defendant Sheahan submits that neither his counsel, nor the Court, should have to sift through Mr. Longo's claimed fees." (Joint Statement at 6 (emphasis added).) remanded for re-sentencing, it is our intention to follow the suggestion of the Seventh Circuit in United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004), that the judge "[c]hoose any sentence [within the statutory range] and in making [this] determination he is free to draw on the guidelines for recommendations as he sees fit." That is still our intention.

  The second circumstance, empaneling a sentencing jury, would occur only if the Supreme Court should direct that sentencing juries must be used to determine guideline issues; otherwise, there is no possibility that we would use that method.

  The third circumstance mentioned by the Court, that on a re-sentencing we would impose only a sentence consistent with a base offense level of 10, with no enhancements, is extremely unlikely. That would be a maximum sentence of 12 months. LaGiglio has already served in excess of 12 months, but that is irrelevant unless we can say it is likely that on a re-sentencing she would receive less than the amount of time required to complete her appeal. We cannot say that.

  We are now satisfied that we should have denied LaGiglio's motion for release when it was originally presented. 18 U.S.C. ยง 3143 (b) (1)(B)(iv) provides that release pending appeal is authorized only if the appeal "raises a substantial question of law or fact likely to result in . . . a reduced sentence to a term of imprisonment less than the total of the time already served plus We suggest that the Sheriff's counsel give careful consideration to this court's recent order in Sears, Roebuck & Co. v. Menard, Inc., No. 01 C 9843 (Sept. 23, 2004), a copy of which is enclosed. Counsel's refusal to do the work required by Rule 54.3 could well have the same result as did similar conduct by Sears, Roebuck and Co. in that proceeding.

  We are setting this case for a status conference on October 27, 2004, to give the Sheriff's counsel one more opportunity to indicate whether they intend to comply with Rule 54.3. Our patience with counsel is due entirely to our recognition of the fact that it is not they, but rather the taxpayers of Cook County, who will have to suffer the consequences of counsel's continued defiance of the Rule.

20041012

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