Tuesday, August 2, 2005

Getting a Resentencing in the Seventh Circuit

As Doug Berman points out on the Sentencing Law & Policy blog (here), the differing approaches of the circuit courts on the question of whether to remand to the district court for resentencing in light of the advisory nature of the Guidelines has created some inequities, at least regarding what must be shown to get a second chance at sentencing.  On one side is the Eighth Circuit's parsimonious approach, and one need only look at the daily release of opinions to see that it is the rare case in that court which meets the standard for a sentencing remand.  The Seventh Circuit takes a more forgiving approach, making a limited remand to the district court to address the initial question of whether it might have imposed a different sentence in light of  Booker.  What does a judge in the Seventh Circuit have to say to trigger the remand?  In an opinion released on Aug. 1 in U.S. v. Askew (here), the court found the following statement by the district judge sufficient: "I am unable at this time to say that I would have imposed the same sentence if I had known the Sentencing Guidelines were merely advisory. I therefore desire to resentence the defendant."  It all depends what side of the Mississippi River you're on (well, kinda). (ph)


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