Opinion
No. 01 CR 348-7.
July 28, 2004
MEMORANDUM OPINION AND ORDER
Before the court is the emergency motion of defendant Bonnie LaGiglio seeking an order for her release pending appeal. The Court of Appeals has remanded the case to this court for the limited purpose of reconsidering our decision on defendant's release pending appeal in light of United States v. Booker, No. 03-4225, 2004 WL 1535858 (7th Cir. July 9, 2004).
The statute governing bail pending appeal provides that a convicted person must be detained unless the district court finds that she is not a flight risk or a danger to the community and that her appeal "is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal [or] an order for a new trial." 18 U.S.C. § 3143(b)(1). "A court considering bail pending appeal must first determine whether the question raised by the appeal is 'substantial,' and then must determine whether a[n] appellate ruling is likely to require reversal of the conviction or a new trial." U.S. v. Shoffner, 791 F.2d 586, 588 (7th Cir. 1986). A "substantial" question of law or fact has been defined as one that presents a close question or "one that very well could be decided the other way."Id. at 589.
One of the questions now presented or soon to be presented in LaGiglio's appeal deals with the effect of the Supreme Court's ruling in Blakely v. Washington, 124 S.Ct. 2531 (2004), and the Seventh Circuit's subsequent ruling in Booker, 2004 WL 1535858. In Booker, the Seventh Circuit held that in light ofBlakely, the application of guidelines sentencing enhancements that require factual findings by the sentencing judge violates the Sixth Amendment.
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. 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. We also find that the appeal is not for the purpose of delay and that LaGiglio is not a flight risk or a danger to the community.
Our disposition of LaGiglio's motion should not be taken as an indication of any view this court is likely to take regarding an appropriate new sentence should there be a reversal and remand for resentencing. In the event of a holding that the substantive portions of the guidelines are not severable from the requirement that a judge find the facts relevant to a sentence, we intend to adopt the following procedure suggested in Booker: "the judge . . . can choose any sentence [within the statutory range] and in making [this] determination he is free to draw on the guidelines for recommendations as he sees fit." 2004 WL 1535858, at *6.
For the reasons stated above, the defendant Bonnie LaGiglio is ordered released pending appeal. The recognizance bond previously imposed by this court is reinstated.