by Lara Flath, '06
A great deal of the work that the Appellate Advocacy Project has done this year has stemmed from the Supreme Court's decision in United States v. Booker. The substantive opinion in that case held that the current federal sentencing scheme, under which judges were often forced to increase a defendant's sentence based on facts that were not found by a jury, violated the Sixth Amendment. The remedial opinion, written by a separate majority, held that the constitutional problem could be eliminated by excising those statutes that made the sentencing guidelines mandatory.
While Booker clearly changed the sentencing guidelines from mandatory to advisory, it gives little guidance as to how to implement these changes. One of the most problematic areas was the courts' treatment of defendants whose sentences were imposed under the then-mandatory regime. The Seventh Circuit first joined many other circuits in determining that Booker issues are not cognizable on habeas. The Seventh Circuit then addressed, in United States v. Paladino, what should be done with defendants who remained on direct appeal at the time Booker was issued. Under Paladino, the Seventh Circuit retains jurisdiction over the appeal but orders a limited remand to the district court for the purpose of allowing the district court to inform the Seventh Circuit whether or not the court would have imposed the same sentence if the court had known, at the time it sentenced the defendant, that the guidelines were advisory rather than mandatory.
The district court will then seek written submissions from both parties, now known as "Paladino memos," which advise the court on how it should respond to the Seventh Circuit's limited remand. After the district court issues its response to the limited remand, the Seventh Circuit gives counsel on both sides seven days to advise the panel what should be done with the appeal. Generally, if the district court states that it would have imposed a different sentence on the defendant had it known that the guidelines were merely advisory, then the Seventh Circuit will vacate the sentence and remand the case for a full resentencing. If the district court indicates that it would have imposed the same sentence, then defense counsel will generally file a short brief arguing that the sentence is "unreasonable" (the new appellate standard articulated in Booker),and counsel for the government will reiterate that, even under Booker, sentences that fall within the prescribed guideline range are "presumptively reasonable."
Such Paladino memos and seven-day letters to the Seventh Circuit have kept the Appellate Advocacy project busy all year. In one case, we addressed the disparity in treatment of crack and powder cocaine offenses by the sentencing guidelines, arguing that the judge in that case had the discretion, post-Booker, to use this disparity as a basis to give a nonguideline sentence. The district court has yet to advise the Seventh Circuit what it would like to do in that case, but in two other cases this year, we have won full re-sentencings for our clients under Paladino.
