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Tuesday, March 15, 2005

Ind. Decisions - 7th Circuit posts five today

USA v. Wade, Levar (CD Ill.) [6 pp.]

Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges. EVANS, Circuit Judge. Bad timing often results in one being in the wrong place at the wrong time. Levar Wade will certainly attest to that, for it was being in the wrong place at the wrong time that resulted in his ticket to a federal prison. Because bad timing is the true cause of his predicament, not an illegal detention or a nonconsensual search, we reject his appeal and affirm the judgment of the district court. * * *
Bland, Lou v. Fiatallis North Amer (ND Ill.) [17 pp.]
Before CUDAHY, MANION and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. A “lifetime” can be a slippery concept in the context of retiree benefits litigation under the Employee Retirement Income Security Act (“ERISA”), 42 U.S.C. §§ 1001 et seq. (2005). This case asks us to consider, on the heels of Vallone v. CNA Financial Corporation, 375 F.3d 623 (7th Cir. 2004), whether designating retiree benefits as “lifetime”really means “for life.” * * *
Fowler, Bobby H. v. Shadel, Scott F. (WD Wis.) [6 pp.]
Before CUDAHY, MANION and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. This bankruptcy case requires us to divine the elusive (and perhaps illusive) nature of an equitable interest in corporate property possessed by a debtor through his ownership of all the shares of capital stock in a closely held corporation. * * *
USA v. Paladino, Robert D. (ND Ill.) [30 pp.]
[Note - this was released Feb. 25th in typescript, but I didn't summarize it at that time. See earlier ILB entry here.]

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision several criminal appeals, argued the same day, all of which present the key issue left open by the Supreme Court’s decision in Booker v. United States, 125 S. Ct. 738 (2005)—the application of the plain-error doctrine to appeals from sentences rendered under the federal sentencing guidelines before the Supreme Court ruled that they are advisory rather than mandatory. * * *

Crosby is the middle way between placing on the defendant the impossible burden of proving that the sentencing judge would have imposed a different sentence had the judge not thought the guidelines mandatory and requiring that all defendants whose cases were pending when Booker was decided are entitled to be resentenced, even when it is clear that the judge would impose the same sentence and the court of appeals would affirm.

To summarize, we affirm all the convictions and Peyton’s sentence, but we direct a limited remand of the remaining sentences in accordance with the procedure set forth above, thus retaining appellate jurisdiction.

Because this opinion establishes a new rule for the circuit, it was circulated to the entire court before issuance. 7th Cir. R. 40(e). All but two members of the court in regular active service voted not to hear the case en banc. Judges Ripple and Kanne voted to hear it en banc.

[p. 23] RIPPLE, Circuit Judge, dissenting from the denial of rehearing en banc. In the few short weeks since the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), the courts of appeals across the Country have produced a significant number of opinions setting forth a broad spectrum of approaches designed to implement the Supreme Court’s decision. The panel opinion before us sets forth the holdings of the first generation of those various cases and then presents a variation of one. Today’s panel opinion thus initiates the second generation of post-Booker opinions, variations on the themes set forth in the first generation of opinions. No doubt, before the vernal equinox arrives, these second generation opinions will produce a further variation and a third generation of opinions will be upon us. Complexity will complicate complexity. The companies that produce the reports of our opinions will be delighted; the notes and comments editors of the Nation’s law reviews will have sufficient fodder for all of next year’s crop of aspiring editors—and the federal courts will raise serious doubts about their capacity to govern.

Is this the course that the Supreme Court expected would follow its pronouncement in Booker? Are we to attribute to the Court a desire that the Nation’s intermediate courts of appeals develop elaborate and diverse approaches to Booker’s holding? * * *

It is indeed difficult to see how the odyssey on which the panel now sends us will do anything other than tie us in knots.2

Booker requires a simple, direct remedy to those harmed by the unconstitutional procedure of former times. We would best serve justice by implementing the Supreme Court’s mandate quickly and efficiently. I respectfully dissent.

[p. 28] KANNE, Circuit Judge, dissenting from the denial of rehearing en banc. I concur with all aspects of the panel’s opinion issued today—except for the proposed mechanism to remedy the unconstitutionally imposed sentences. I believe that the sentences must be vacated and remanded to the district courts for resentencing in light of Booker. * * *

Incredible Tech v. Virtual Tech Inc (ND Ill.) [14 pp.]
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. As anyone who plays it knows, golf can be a very addicting game. And when real golfers want to tee-it-up, they head for their favorite course, which might be a gem like Brown Deer in Milwaukee, a public course that nevertheless plays host to an annual PGA Tour event every July. What most golfers do not do when they want to play 18 is head for a tavern. Also, most people are quite familiar with Tiger Woods. But who knows Jeff Harlow of Florissant, Missouri? This case is about “golfers” who prefer taverns to fairways and aspire to be more like Harlow than Tiger. Our case concerns video golf. * * *

Posted by Marcia Oddi on March 15, 2005 02:56 PM
Posted to Ind. (7th Cir.) Decisions