Tuesday, August 03, 2004

New Federal Cases

The Seventh Circuit has rejected another sentence on Blakely/Booker grounds. The court recently decided US v. Ohlinger, 2004 U.S. App. LEXIS 15836 (No. 03-3380 )(7th Cir., Aug, 2, 2004), in which Judge Falum wrote for the court:

Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant's sentence. As Booker holds, the Guidelines's contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. In this case, the district judge made several factual findings and used these findings to support sentence enhancements for distributing pornographic images with the expectation of receiving other images and engaging in a pattern of activity involving the sexual abuse of minors. We therefore must remand Ohlinger's case to the district judge for re-sentencing in light of Booker.

Also from the Seventh Circuit, we get US v. Lagiglio, (No. 01 CR 348-7) 2004 U.S. Dist. LEXIS 14611 (N.D. Ill., July 29, 2004), a case on remand from the Seventh Circuit Court of Appeals.

LaGiglio was convicted of conspiracy to impede the collection of taxes in violation of 18 U.S.C. 371. Her sentence was enhanced pursuant to findings regarding the amount of tax loss and that the offense involved sophisticated means.

Judge Grady wrote:

Thus, it does appear that in light of Booker, LaGiglio raises a substantial question that is likely to require reversal, at least for the purpose of resentencing.

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