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Tuesday, March 22, 2005

Ind. Decisions - 7th Circuit issues one today

USA v. Re, Randall (ND Ill.) [16 pp.]

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. A jury found both Randall Re and Anthony Calabrese guilty of conspiring to commit extortion and conspiring to travel to commit extortion. In this consolidated appeal, the defendants challenge their convictions and their sentences. We affirm their convictions, but pursuant to United States v. Booker, 125 S. Ct. 738 (2005) and United States v. Paladino, No. 03-2296, 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005), we order a limited remand regarding their sentences. * * *

[In Booker the Supreme] Court held that the Guidelines are no longer mandatory. The district court has discretion to sentence outside the Guideline range as long as the sentence is reasonable. * * *

Re and Calabrese now claim that their sentences were imposed in violation of the Sixth Amendment as clarified by Booker, and that the sentences should be vacated. The defendants did not argue that the Guidelines were unconstitutional in the district court; therefore, we must now review their sentences under the plain error standard. See Booker, 125 S. Ct. at 769; United States v. Cotton, 535 U.S. 625 (2002). A four-part test was set forth by the Supreme Court to determine plain error. Cotton, 535 U.S. at 631-32; Johnson v. United States, 520 U.S. 461, 466-67 (1997). “[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson, 520 U.S. at 466-67 (internal quotations and citation omitted). Only if these conditions are met may an appellate court “exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 467 (internal quotations and citation omitted). * * *

Although the sentences were unconstitutionally imposed, we do not know whether the defendants’ rights were substantially affected because we do not know if the district judge would have imposed the same sentences even with the increased discretion permitted by Booker. Therefore, we will retain jurisdiction of the appeal and “order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence.” Id. at *10. If the district court determines that it would have imposed the same sentence, there is no prejudice and thus no plain error, but the sentence will still be reviewed for reasonableness. Id. If the sentencing judge determines that he would have imposed different sentences under the Booker standard, we will vacate the original sentences and remand the cases for resentencing. Id.

IV. Conclusion. For the foregoing reasons, we AFFIRM the convictions of Re and Calabrese. While retaining jurisdiction, we order a limited remand of their sentences in accordance with Booker, Paladino, and this opinion. The district court is directed to return this case to us when the limited remand has been completed.

Posted by Marcia Oddi on March 22, 2005 01:02 PM
Posted to Ind. (7th Cir.) Decisions