The opinion of the court was delivered by: BLANCHE MANNING, District Judge
This case is before the court on a limited remand by the
Seventh Circuit Court of Appeals to determine whether this court
would impose the defendant's original sentence had the Sentencing
Guidelines been advisory rather than mandatory. See U.S. v.
Paladino, 401 F.3d 471 (7th Cir. 2005). In Paladino, the court
Upon reaching its decision (with or without a
hearing) whether to resentence, the District Court
should either place on the record a decision not to
resentence with an appropriate explanation, or inform
this court of its desire to resentence the defendant.
Id. at 484 (citation and quotation marks omitted). In making
this statement, the court should obtain the views of counsel but
need not require the presence of the defendant. Id.
Welch was convicted by a jury of robbing a bank in violation of
18 U.S.C. § 2113. In imposing its original sentence, the court
granted the government's motion for an upward departure under §
4A1.3 to reflect the seriousness of Welch's past criminal
conduct. Specifically, the court increased defendant's criminal
history category from a IV to a VI based on its finding by a
preponderance of the evidence that Welch had committed 4 other
bank robberies. This finding resulted in a total of 20 criminal
Further, because 20 criminal history points exceeded the bounds
of criminal history category VI, the court increased Welch's
Guideline range from a 27 to a 28 to reflect his prior criminal
history under § 4A3.1. In so doing, the court stated that "the
sentencing range normally imposed by the Guidelines for a criminal history category IV does
not adequately reflect the egregious nature of Welch's criminal
past or the likelihood that he will commit future crimes if given
the opportunity." With a Guideline level of 28 and a criminal
history category of VI, the Guidelines provided for a sentencing
range of 140-175 months.
Welch also objected to the two-level enhancement for an
obstruction of justice under Guideline § 3C1.1, which had been
recommended in the PSR because Welch submitted to this court and
the magistrate judge a document indicating that he had been
honorably discharged from the military. In fact, however, this
court stated in its original sentencing memorandum that Welch was
given an involuntary general discharge for drug abuse and failure
to comply with drug rehabilitation. The court overrruled his
objections and imposed the two-level obstruction. The court
sentenced Welch to 160 months.
In determining whether it would impose the same sentence had
the Guidelines been advisory rather than mandatory, the court has
reviewed the written submissions of the parties as to this
remand, its original sentencing memorandum, and the presentence
report with the associated objections. The court has considered
the nature and circumstances of the offense, the history and
characteristics of the defendant under § 3553, the purpose for
imposing the sentence, and the advisory Guideline range of
Welch asserts that since he was last before this court, his
life has "changed significantly." Specifically, Welch states that
since his incarceration, he has complied with all Bureau of
Prison rules, tutored inmates, worked as a custodian, and
completed various classes. He also states that life for his
family, with whom he is close, has been "extremely difficult"
since his incarceration.
While the court commends Welch's efforts at turning his life
around and preparing for a productive life outside of prison,
such post-sentencing conduct and events are not relevant on a
Paladino remand. U.S. v. Re, ___ F.3d ___, No. 03-2089, 2005
WL 1924196, at *2 (7th Cir. Aug. 12, 2005) ("in a Paladino
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. . . . Post-sentencing events or conduct simply are not relevant to th[e Paladino]
inquiry."). The court concludes based on its consideration of all
of the relevant factors that it would impose the same sentence.
The court believes that the sentence of 160 months, which falls
just above the halfway mark of the range advised by the
Guidelines, is reasonable to hold Welch accountable for his
crimes and to protect the community at large from additional
criminal activity by the defendant.
The court notes in the interest of completeness that it is
unpersuaded by Welch's other arguments on limited remand.
Specifically, Welch argues that any sentencing enhancements found
by the court must be based on facts that were found beyond a
reasonable doubt. However, as the Seventh Circuit stated in
McReynolds v. U.S., 397 F.3d 479
, 481 (7th Cir. 2005):
What is more, Booker does not in the end move any
decision from judge to jury, or change the burden of
persuasion. The remedial portion of Booker held that
decisions about sentencing factors will continue to
be made by judges, on the preponderance of the
evidence, an approach that comports with the sixth
amendment so long as the guideline system has some
flexibility in application. As a practical matter,
then, petitioners' sentences would be determined in
the same way if they were sentenced today; the only
change would be the degree of flexibility judges
would enjoy in applying the guideline system.
Thus, it is proper for the court to have considered the evidence
of defendant's prior crimes in sentencing and Welch's
constitutional rights are protected by the fact that on this
limited remand, the court understands the Guidelines to be
advisory rather than mandatory.
Welch also argues that the imposition of the advisory
guidelines system created by the remedial majority opinion in
Booker violates the ex post facto clause. However, the Seventh
Circuit has recently rejected such a claim. United States v.
Jamison, ___ F.3d ___, 2005 WL 1683961, at *1 (7th Cir. July
20, 2005) ("We therefore join the Fifth and Eleventh Circuits in
rejecting an ex post facto claim based on the remedial holding
in Booker) (citations omitted).
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