                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-2934
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellant,
                                  v.

BONNIE LAGIGLIO,
                                                  Defendant-Appellee.

                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 01 CR 348-7—John F. Grady, Judge.
                          ____________
    SUBMITTED AUGUST 17, 2004—DECIDED OCTOBER 8, 2004
                          ____________




  Before BAUER, POSNER, and MANION, Circuit Judges.
  POSNER, Circuit Judge. A jury convicted Bonnie LaGiglio
of conspiracy to impede collection of taxes by the Internal
Revenue Service, 18 U.S.C. § 371, an offense for which the
federal sentencing guidelines prescribe a base offense level
of 10; but, consistent with the guidelines, the judge in-
creased LaGiglio’s offense level by a total of 11 because of
the amount of the government’s tax loss and LaGiglio’s use
of sophisticated means to commit the crime, and sentenced
her to 41 months in prison.
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   LaGiglio appealed the judgment to us and also filed a
motion in the district court, which was denied, for release
from prison pending appeal. While the appeal was pending
(it is still pending), but after the Supreme Court decided
Blakely v. Washington, 124 S. Ct. 2531 (2004), and we deter-
mined the effect of Blakely on the sentencing guidelines in
United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted,
2004 WL 1713654 (U.S. Aug. 2, 2004), LaGiglio moved us to
order her released pending appeal, arguing that Booker caps
her sentence at 12 months and she has already been in
prison that long. We directed the district judge to revisit his
denial of her motion for release in light of the intervening
decisions. He ruled that her sentence was unlawful under
Booker and ordered her released, precipitating this appeal by
the government.
   The government points out that LaGiglio is entitled to be
released only if she is likely to be resentenced to a term of
imprisonment shorter than the length of time that she will
have been in prison by the time her appeal is decided. The
Bail Reform Act authorizes release pending appeal only if
(so far as bears on this case) the appeal “raises a substantial
question of law or fact likely to result in . . . a reduced sen-
tence to a term of imprisonment less than the total of the
time already served plus the expected duration of the ap-
peal process.” 18 U.S.C. § 3143(b)(1)(B)(iv). An imprisoned
person is not to be released pending further proceedings if it
is a certainty that however those proceedings are resolved,
he will have to be returned to prison. United States v. Krilich,
178 F.3d 859, 861-62 (7th Cir. 1999) (per curiam); United
States v. Holzer, 848 F.2d 822, 824 (7th Cir. 1988).
  The district judge did not indicate whether he thought
LaGiglio was entitled to a sentence short enough not to ex-
ceed the time she has already served, and rather than spe-
culate we shall again direct him to revisit her motion, this
No. 04-2934                                                   3

time in light of Booker. For his guidance in considering the
motion, we note that there are only three circumstances in
which, consistent with the Bail Reform Act, Booker would
entitle a district court to release a defendant pending ap-
peal: (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.
  Should the judge be minded to release LaGiglio, he will
have to consider the government’s argument that she has
waived or forfeited reliance on Booker. If he is not minded to
order her release, he will not have to enter that briar patch.
  The motion for release is referred to the district court for
further proceedings consistent with this opinion.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit



                     USCA-02-C-0072—10-8-04
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