In light of Booker, when is a criminal defendant entitled to release from custody pending his appeal?
Judge Posner, for a unanimous three-judge panel, writes:
[T]here are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.
United States v. Lagiglio, No. 01 CR 348-7, at *3 (7th Cir., Oct. 8, 2004).