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U.S. v. HENRY

June 7, 2005.

UNITED STATES OF AMERICA, Plaintiff
v.
LANCELOT HENRY Defendant.



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 ...


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