The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
The Seventh Circuit issued a limited remand on April 4, 2005
instructing this court, pursuant to United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), to provide the Seventh Circuit this
court's views as to the probable result of resentencing of
defendant Lancelot Henry ("Henry"), applying the United States
Sentencing Guidelines ("Guidelines"), in an advisory manner.
124 Fed. Appx. 464 (7th Cir. 2005). For the reasons set forth below,
this court informs the Seventh Circuit that upon a remand for
resentencing using the Guidelines as advisory, this court would
impose the same sentence that it originally imposed on Henry.
A. The Paladino Limited Remand
1. The Purpose of the Paladino Limited Remand
The Supreme Court's decision in United States v. Booker held
that the Sixth Amendment rights enumerated in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington,
___ U.S. ___, 124 S. Ct. 2531 (2004), also apply to defendants being
sentenced in federal court under the Federal Sentencing
Guidelines. ___ U.S. ___, 125 S. Ct. 738 (2005) (Stevens, J.
Opinion). The Booker court held that the proper remedy was to
alter the Sentencing Reform Act by making the Guidelines advisory
instead of mandatory. Id. at 758 (Breyer, J. Opinion). The
Paladino limited remand is a consequence of the Booker decision because the
Booker decision must be applied to all defendants who are on
direct appeal as of Booker's January 12, 2005 release date.
Id. at 770 ("As these dispositions indicate, we must apply
today's holdings both the Sixth Amendment holding and our
remedial interpretation of the Sentencing Act to all cases on
direct review."); see e.g., United States v. Schlifer,
403 F.3d 849, 853 (7th Cir. 2005) ("Thus in every pending appeal where the
district court sentenced a defendant under the now-defunct
mandatory Guidelines scheme, error will have been committed.");
compare McReynolds v. United States, 397 F.3d 479, 481 (7th
Cir. 2005) ("[B] ooker does not apply retroactively to
criminal cases that become final before its release on January
12, 2005.").
Although Booker is now applied to every defendant on direct
appeal, and a district court's prior imposition of a sentence
under the mandatory sentencing Guidelines was error, see United
States v. Castillo, 406 F.3d 806, 823 (7th Cir. 2005) (quoting
United States v. White, 406 F.3d 827, 835 (7th Cir. 2005)
("[T]he mere mandatory application of the Guidelines the
district court's belief that it was required to impose a
Guideline sentence constitutes error.")), "the existence of
error, however, does not mean that every appeal must lead to
resentencing." Schlifer, 403 F.3d at 853. Instead, the Seventh
Circuit must classify the type of error caused by the district
court's imposition of a sentence under the mandatory Guidelines
system when the defendant challenges his sentence on direct
appeal. The classification of the error determines what type of
review the Seventh Circuit will undertake in evaluating the
impact of the error, and in turn, what actions, if any, must be
taken by the district court to rectify the error in sentencing.
The Seventh Circuit's review is plenary when the defendant
preserved an objection under the Sixth Amendment to sentencing
under the mandatory Guidelines system at the district court level. The result is that the defendant's sentence will be
vacated and the case is remanded to the district court for
resentencing in light of the Booker decision. See Schlifer,
403 F.3d at 854 (holding that the defendant's objection based on
Blakely grounds was sufficient to preserve his objection to the
imposition of a sentence under the mandatory Guidelines).
If the defendant did not preserve an objection to the
imposition of a sentence by the district court under the
procedures of the mandatory application of the Guidelines, then
the question becomes why did the defendant fail to present the
objection before the district court. A defendant who knowingly,
intentionally and voluntarily relinquished or abandoned his known
right to bring his Sixth Amendment challenge to the imposition of
a sentence under the procedures of the mandatory application of
the Guidelines has waived the Booker constitutional violation,
and the Seventh Circuit should affirm the sentence on this issue.
United States v. Cunningham, 405 F.3d 497, 503 (7th Cir. 2005)
(citing United States v. Olano, 507 U.S. 725, 733 (1993);
United States v. Penny, 60 F.3d 1257, 1261 (7th Cir. 1995)).
A defendant who merely forfeited his objection by "failing to
make a timely assertion" of his right is entitled to a plain
error review of his sentence under Booker. Cunningham,
405 F.3d at 503 (citing Olano, 507 U.S. at 733; United States v.
Griffin, 84 F.3d 912, 924 (7th Cir. 1996); Fed.R.Crim.P.
42(b)). Under the plain error review, "an appellate court can
correct an error that the defendant failed to raise [before the
district court] only when there was (1) error, (2) that is plain,
and (3) that affects substantial rights. . . . If these [three]
conditions are met, an appellate court may exercise its
discretion to notice a forfeited error if (4) the error seriously
affects the fairness, integrity, or public reputation of the
proceedings." United States v. Henningsen, 402 F.3d 748, 750
(7th Cir. 2005) (citing Olano, 507 U.S. at 732; Paladino,
401 F.3d at 471)). The defendant on review will be able to satisfy easily the
first and second prongs of the plain error test because he was
sentenced under the mandatory Guidelines procedures. The Seventh
Circuit has held that sentencing a defendant under the mandatory
Guidelines system is an (1) error and (2) that the error is
plain. United States v. Askew, 403 F.3d 496, 509 (7th Cir.
2005) ([The defendant's] "sentence was imposed under a sentencing
scheme that we now know is unconstitutional. [The defendant's]
sentence, therefore, was imposed in error, and the error is
plain."). Furthermore, the fourth prong, that the error seriously
affects the fairness, integrity, or public reputation of the
proceedings, is satisfied when the defendant received a more
severe sentence under the unconstitutional mandatory Guidelines
when compared to a theoretical sentence the district court would
have imposed under the advisory Guidelines procedure. United
States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005) ("To tell
a defendant we know your sentence would have been 60 months
shorter had the district judge known the Guidelines were merely
advisory . . . but that is your tough luck and you'll just have
to stew in prison for 60 additional months because of an
acknowledged violation of the Constitution would undermine the
fairness, the integrity and the public repute of the federal
judicial process.").
The third prong of the plain error test, whether the
defendant's substantial rights have been affected, is the central
issue for the plain error review. A plain error affects the
defendant's substantial rights when the plain error is
"prejudicial, in that it `affected the outcome of the district
court proceedings.'" United States v. Macedo, 406 F.3d 778, 790
(7th Cir. 2005) (quoting Olano, 507 U.S. at 734). A defendant's
substantial rights are only affected when he would have received
a lesser sentence from the district court under the post-Booker
advisory Guidelines when compared to the actual sentence imposed
by the district court under the unconstitutional mandatory Guidelines system. Paladino, 401 F.3d at 483 ("[I]f
the judge would have imposed the same sentence even if he had
thought the Guidelines merely advisory . . . there is no
prejudice to the defendant."); see e.g., United States v.
Goldberg, 406 F.3d 891, 894 (7th Cir. 2005) (noting that the
district court judge's treatment of the Guidelines as mandatory
is plain error when the district court judge would have imposed a
shorter sentence if the judge had known the Guidelines were
merely advisory).
The Seventh Circuit determines whether the third prong of the
plain error test, whether the defendant experienced prejudice by
being sentenced under the mandatory Guidelines, is satisfied
through one of two methods. The first method for the Seventh
Circuit to evaluate whether prejudice has occurred is by
reviewing the district court record and determining without
further input from the district court, what the district court
would have done had that court known that the Guidelines were
advisory instead of mandatory. United States v. Lee,
399 F.3d 864, 866 (7th Cir. 2005) (examples of situations where the
Seventh Circuit might be able to determine on its own whether
prejudice occurred through a review of the district court record
include: (1) the district court judge had no discretion on the
sentence because the court was required to impose a mandatory
sentence statute independent from the Guidelines; (2) the
defendant experienced no prejudice under the original sentence
because the mandatory Guidelines prohibited the district court
judge from imposing a higher sentence or the judge made a mistake
in sentencing that benefitted the defendant; (3) the district
court judge provided an indication that he or she was constrained
from departing downward due to a procedural default that occurred
during the sentencing procedure); see e.g., United States v.
Henry, ___ F.3d ___, No. 04-2036, 2005 WL 1243337, at *4 (7th
Cir. May 26, 2005) ("We note, though, that the district court's discretion to impose a lower sentence will be constrained
by a 10 year mandatory-minimum."); United States v. Douglas,
___ F.3d ___, No. 03-2566, 2005 WL 1243356, at *7 n. 1 (7th Cir.
May 25, 2005) (noting that there was no Booker/Paladino issue
when the defendant's sentence of a mandatory life imprisonment
was imposed pursuant to an independent statute and was not a
product of the Guidelines).
The other method of determining whether a defendant suffered
prejudice from being sentenced under the unconstitutional
mandatory Guideline system is for the Seventh Circuit to ask the
district court, through a limited remand, whether the district
court would have imposed a different sentence, (and presumably
lower sentence), had the district court known that the Guidelines
were advisory instead of mandatory. This second procedure is the
Paladino limited remand procedure which was announced on
February 25, 2005.
In the Paladino case, Judge Posner stated that "[t]he only
practical way (and it happens also to be the shortest, the
easiest, the quickest, and the surest way) to determine whether
the kind of plain error argued in these cases has actually
occurred is to ask the district judge." 401 F.3d at 483. Judge
Easterbrook in United States v. Lee, which was decided the same
day as Paladino, characterized the Paladino remand as a
mechanism "to avoid aimless speculation" as to what the district
court would have done had it realized that it should have
sentenced under the advisory Guidelines. 399 F.3d 864, 866 (7th
Cir. 2005). The Paladino limited remand "is necessary only when
uncertainty otherwise would leave [the Seventh Circuit] in a fog
about what the district judge would have done with the additional
discretion." Id.
A district court judge receiving a limited remand under
Paladino is asked to decide whether he or she "would (if
required to resentence) reimpose [the] original sentence,"
Paladino, 401 F.3d at 484, under the advisory Guideline system that judge
imposed under the mandatory Guideline system, and therefore
determining that the fact that the Guidelines are now advisory
instead of mandatory would have had no impact on its sentencing
decision. Id. Under this procedure, the district court then
informs the Seventh Circuit that there is no reason to vacate the
old sentence and remand for resentencing because the district
court would merely reimpose the same sentence. Therefore, the
prejudice requirement of the third prong of the plain error ...