October 10, 2004

7th Circuit is Afraid of the Briar Patch?

In United States v. LaGiglio, No. 04-2934 (7th Cir. Oct. 8, 2004), an appeal by the government, and an opinion by Judge Posner (who wrote the Booker majority opinion),
[a] jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U.S.C. § 371, an offense for which the federal sentencing guidelines prescribe a base offense level of 10; but, consistent with the guidelines, the judge increased LaGiglio’s offense level by a total of 11 because of the amount of the government’s tax loss and LaGiglio’s use of sophisticated means to commit the crime, and sentenced her to 41 months in prison.
The level 10 translated into a sentence of 12 months, and defendant had already served that much. She had requested that she be released pending her appeal, and the district court had denied her request. She then requested that the 7th Circuit order her released. The Circuit remanded the case to the district court in light of Blakely and Booker, and the district court ordered her released. It is from that decision that the government then appealed. Because the district court
did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.
(emphasis added). I have never understood why the 7th Circuit had to leave the decision whether the proper route was to convene sentencing juries, or whether to use the guidelines at all to the district courts, and this obviously inlcudes the issue of severability which they passed over in Booker. The answers could and should have come from the 7th Circuit in Booker and they did not, instead passing it up to the Supreme Court and/or the lower courts. Is the 7th Circuit afraid of the briar patch?