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Thursday, March 24, 2005

Ind. Decisions - 7th Circuit posts four today

USA v. Rosas, Freddy (ED Wis.) [7 pp.]

Before BAUER, COFFEY, and SYKES, Circuit Judges.
PER CURIAM. * * * That leaves only Rosas’ argument under Blakely and Booker. While Rosas acknowledges that prior convictions used to enhance sentences need not be proven to a jury beyond a reasonable doubt, * * * he contends that it is the nature, not the mere existence, of a previous conviction that requires a jury determination. This argument is misguided because whether a previous offense constitutes crime of violence for purposes of sentencing enhancement is a question of law * * *. AFFIRMED.

USA v. Spano, Michael (ND Ill.) [10 pp.]

Before CUDAHY, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. * * * As we concluded in Paladino, the “only practical way . . . to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge.” Paladino, 2005 WL 435430, at *10. To that end, we “order a limited remand to permit the sentencing judge to determine whether he would . . . reimpose his original sentence.” Id. If the district court determines that the defendants would have received the same sentences, we will conclude that the defendants were not prejudiced and the plain error challenge must fail. We will then affirm the original sentences, provided they are reasonable. See id. (citing Booker, 125 S. Ct. at 765).

On the other hand, if the district court decides that different sentences would have been appropriate in the exercise of greater discretion, “we will vacate the original sentence and remand for resentencing.” Paladino, 2005 WL 435430, at *10. Regardless of whether the district court decides to resentence the defendants, the court should abide by the process we set forth in Paladino to provide an appropriate explanation for its decision. See id.

II. Conclusion. For the foregoing reasons, we AFFIRM the defendants’ convictions. As to the defendants’ sentences, however, we order a limited remand of this case in accordance with the remedial procedure adopted by this circuit in Paladino. The district court is directed to return this case to us at the completion of its sentencing determination, pursuant to the procedure set forth in Paladino.

USA v. Melendez, Juan (SD Ill.) [11 pp.]

Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. For the foregoing reasons we AFFIRM the defendant’s conviction and liability in criminal forfeiture. While retaining jurisdiction, we order a limited remand of Melendez’s sentence 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.

Southern IL Carpenters Welfare Fund v. RFMS Incorporated (SD Ill.) [7 pp.]

ERISA case

Posted by Marcia Oddi on March 24, 2005 01:49 PM
Posted to Ind. (7th Cir.) Decisions