There is another type of Booker argument available but which Antonakopoulos has not made: that there is a reasonable probability that the district court, freed of mandatory guidelines, would have given him a lower sentence. Because this case establishes the standard for such a claim, we think it fairer to give Antonakopoulos and his counsel time to consider whether he wishes to advance the argument. If so, the prosecution must have a chance to respond
At sentencing the defendant sought a downward departure based in part on the fact that his son was brain damaged and he had been his son's caretaker. The court determined that others can also provide care, and indeed have done so during his imprisonment. The main grounds on which he sought remand, under Blakely, are now gone. This ground, that of family circumstances, is still open and is not frivolous.
If defendant wishes to pursue this remaining type of Booker resentencing claim, he should advise this court and submit a supplemental brief within ten days, in compliance with our rules, not to exceed 15 pages. The brief should address the standards articulated in the opinion. The government shall have five days to file a response of no greater length. If the defendant does not make such a supplemental filing within the time allotted, he will be deemed to have waived this option and judgment shall enter accordingly.
Antonakopoulos, slip op. at 29-30.
An examination of the First Circuit's Docket in Antonakopoulos shows that Supplemental Briefs were in fact filed thereafter. The Docket also shows that on March 15, 2005 an Order was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch, which (as per the docket entry) states as follows:
After consideration of the supplemental briefs filed by the parties, we vacate the defendant's sentence and remand the case to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentence should be imposed on remand. So ordered."
The docket also reflects that on the same date Judgment was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch. The corresponding docket entry states as follows:
Consistent with the court's opinion of February 22, 2005, the conviction of Stelios Antonakopoulos is affirmed. After consideration of the supplemental briefs filed by the parties, the defendant's sentence is vacated and the case is remanded to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). The district court's order for restitution to Mercantile Bank and Trust is, on remand, to be reduced to $100,000. We intimate no view as to what sentence should be imposed on remand.
So Antonakopoulos did in fact result in a Booker remand, contrary to what we had published earlier here at the PRACDL Blog and here in Macondo Law. We thank the folks on the CJAFirstCircuit group for pointing this out to us.