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Monday, April 25, 2005

Ind. Decisions - 7th Circuit posts three today



USA v. SCOTT, WALTER K. (SD Ind., Sarah Evans Barker, Judge) [9 pp.]

Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. Kevin Scott was convicted of bank fraud, of fraudulently using another person’s Social Security number, and of transacting in money obtained through crime (“money laundering” in the broad, which is also the statutory, sense). He was sentenced to 120 months in prison and ordered to pay more than $1.3 million in restitution to the victims of his crimes. He appeals on a number of grounds, four of which, all relating to the sentence, have sufficient substance to warrant discussion. The first is that he received an illegal sentence because the judge thought the sentencing guidelines were mandatory, yet United States v. Booker, 125 S. Ct. 738 (2005), held that they are merely advisory. He was sentenced before the Booker decision and failed to challenge the mandatory character of the guidelines in the district court; to obtain relief from us he must therefore show that the sentence amounted to a plain error. United States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005). Under the procedure adopted in Paladino, if we are uncertain whether the judge would have imposed the same sentence had he (or in this case she) realized that the guidelines are merely advisory, we direct a limited remand for a statement by the judge, id. at 483-85; for that is the only way we can determine whether the sentencing error actually harmed the defendant by illegally protracting his term of imprisonment. * * *

To summarize, the conviction and the award of restitution are affirmed, but the judgment is vacated and the case remanded for resentencing.

Posted by Marcia Oddi on April 25, 2005 02:19 PM
Posted to Ind. (7th Cir.) Decisions