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Friday, January 07, 2005

Indiana Decisions - 7th Circuit posts 5 today

Foelker, Richard v. Outagamie County (ED Wis.)

Winniczek, Hilary M. v. Nagelberg, Sheldon (ND Ill.)

USA v. Swanson, David H. (SD Ind., Sarah Evans Barker, Judge)

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted the defendant, David H. Swanson, of wire fraud, money laundering, interstate transport of converted funds, and tax evasion stemming from a complex scheme of financial manipulations through which Swanson was able to siphon funds for his own personal use as he assisted large agricultural corporations in their various acquisitions and investments. On appeal he challenged the district courtís choice of sentencing guidelines as well as its calculations for amount of loss, restitution, and forfeiture. After the parties submitted their initial briefs to this court, two events altered the landscape of this appeal. First, the government conceded that the district court used the improper sentencing guidelines and second, the Supreme Court accepted certiorari in two cases which question the constitutionality of the current federal sentencing practices allowing judges to enhance sentences based on factual determinations made using the preponderance of the evidence standard. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105). The parties submitted supplemental briefs as to the applicability of Booker and Fanfan. Because we agree with both parties that the district court used the improper guidelines, we remand the case for resentencing under the proper guidelines and/or in accordance with the forthcoming United States Supreme Court decisions in Booker and Fanfan. We also remand for new findings as to the proper amount of restitution and forfeiture. * * *

In sum, we remand this case to the district court for resentencing in light of the forthcoming United States Supreme Court opinions in Booker and Fanan. This may or may not involve application of the 1998 Sentencing Guidelines Manual, but will certainly require some recalculation and additional findings on restitution and forfeiture.
REVERSED and REMANDED

RIPPLE, Circuit Judge, concurring in part and dissenting in part. I agree entirely with my colleagues with respect to all substantive matters addressed in the opinion of the court. I also agree that the ultimate disposition of sentencing matters in this case must await the Supreme Courtís decisions in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 4-105). I would therefore hold our decision in this case until the Supreme Court decides those matters or, in the alternative, I would issue the opinion, but stay our mandate, until those cases are decided and we can give the district court a more definitive ruling on how it ought to proceed in a resentencing proceeding. I can see no judicial economy in placing this case back on the docket of a busy district court until we can say how that court ought to proceed. To this limited extent, I respectfully dissent from the otherwise thoughtful opinion of the court.

Prela, Gjergj v. Ashcroft, John D. (Petition for Review of an Order of the Board of Immigration Appeals)

Hoskins, Robert v. Lenear, Connie (ND Ill.)

Posted by Marcia Oddi on January 7, 2005 02:02 PM
Posted to Ind. (7th Cir.) Decisions