From the 7th Circuit we get United States v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) in which defendant had been sentenced pre-Booker and was arguing on appeal a misapplication of the sentencing guidelines by the district court in imposing a vulnerable victim enhancement. If the defendant was right, and the Court remanded on that ground, he would have to be resentenced, in which case --according to Judge Posner-- the district court could impose a higher, lower, or the same sentence under the new advisory guidelines. The 7th Circuit did not buy the misapplication of the guidelines argument, and held that defendant was entitled to a limited remand under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). But to questions from the bench at oral argument, defense counsel had argued that the district court could not impose a higher sentence on resentencing because it would raise a presumption of vindictiveness. At oral argument the Court chastised counsel for his argument and thought that they were failing to consider the fact that the vindictiveness would only be presumed if they were still in the pre-Booker mandatory guidelines scheme, but not when the rules of the game had changed. Judge Posner explains in his opinion how the more limited Paladino remand may be better for defendant than what he was actually requesting, because it would make it more likely that he would not receive an increased sentence on remand.
At Sentencing Law and Policy Professor Berman has discussed the case in this post (Can a post-Booker resentencing lead to a sentence increase?) and wondered how Judge Posner had failed to "discuss or even seem to consider that due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct."[*] Professor Berman's post also links to previous posts at SL&P in which he discussed the due process / ex post facto issue and should be read by all.
[*] I went to the Seventh Circuit website and looked for the Goldberg opinion and found that they also had a link to the oral argument which (of course) I listened to. Appellant's counsel never spoke of the ex post facto issue when explaining to the Court why he understood the district court would not be able to impose a higher sentence if the case was remanded for a full resentencing rather than for a limited Paladino remand. Does this explain why Judge Posner didn't address it in his opinion for the panel in Goldberg? Does it excuse it?