United States of America v. John S. Mallon

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2049
U NITED S TATES OF A MERICA ,
Plaintiff-Appellant,
v.
J OHN S. M ALLON ,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 CR 217—Joan B. Gottschall, Judge.
____________
A RGUED S EPTEMBER 18, 2003—D ECIDED S EPTEMBER 18, 2003
O PINION I SSUED O CTOBER 6, 2003
____________
Before E ASTERBROOK , D IANE P. W OOD , and E VANS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. John Mallon, a citizen of
the United Kingdom residing in Northern Ireland, pleaded
guilty to the crime of using the means of interstate and
international communication in an effort to entice a fe-
male under the age of 18 to engage in sexual activity. See
18 U.S.C. §2422(b). The admissions that accompanied
Mallon’s plea, plus uncontested facts adduced at sentenc-
ing, show that, beginning in early February 2002, he at-
tempted to entice Marny, who represented herself to be 14
years old, into a sexual liaison. Mallon’s initial contact
with Marny was made by computer, through an Internet

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2 No. 03-2049
chat room, from Mallon’s home in Belfast. After Marny
rejected Mallon’s initial overtures, he continued sending
her email messages boasting of his sexual experience (in-
cluding a tryst with a 15-year-old girl in Florida) and
assuring Marny that he would provide both financial
and psychological support, serving as a father substitute.
(Marny said that her father had abandoned her.) Tele-
phone conversations followed. Marny finally agreed to
meet Mallon on March 8, 2002, and Mallon flew to Chicago
for that purpose.
As the acting head of the Ulster-Scots Agency, an or-
ganization created by Northern Ireland’s Good Friday
Agreement, Mallon had been scheduled to be at the White
House in Washington, D.C., on March 11 for an official
ceremony. He came to the United States early, and via
Chicago, in order to engage in sexual relations with Marny,
who he called promptly after his plane touched down at
O’Hare Airport. When Marny arrived at Mallon’s hotel, he
tried to hug and kiss her but did not get far—for “Marny”
was just the assumed name of an agent, and Mallon was
soon under arrest. (Both sides had been lying in the chat
room and email exchanges. Mallon claimed to be a wealthy
businessman, 47 years old, single, with no children. Actu-
ally he was 61 years old, married for 40 years with 5
children and 10 grandchildren, and after 24 years in the
civil service had retired in 1995 to become a consultant.
He volunteered for post-retirement work managing the
Ulster-Scots Agency.) Mallon’s hotel room contained con-
doms, a video camera set up to record the encounter, and
a gold necklace that he had planned to give Marny. Con-
stables who later searched Mallon’s home found numer-
ous sexually graphic communications between Mallon
and other girls who represented that they had not reached
the age of 16.
After all adjustments, Mallon’s offense level was 22,
which led to a sentencing range of 41 to 51 months’ impris-

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No. 03-2049 3
onment. Nonetheless, the district judge fixed Mallon’s
sentence at 21 months. She gave two principal reasons
for this departure from the prescribed range. First, she
concluded that Mallon’s heart condition had caused “a
severely diminished capacity to make good judgments”,
justifying a four-level departure under U.S.S.G. §5K2.13.
Second, she stated that “a group of factors, including
but not limited to defendant’s deportable alien status,”
justified a further two-level reduction. That produced a
new offense level of 16 and a range of 21 to 27 months’
imprisonment.
The United States filed a notice of appeal; Mallon did
not take a cross-appeal and does not contest the original
offense level of 22 (though he stoutly defends the district
court’s downward departure to a level of 16). About a
month before oral argument, the prosecutor learned that,
with good-time credits, Mallon would be released from
the 21-month sentence the day before oral argument and
could be removed from the United States swiftly there-
after. The prosecutor filed a motion asking us to stay
this removal. For the reasons given in Appendix A to this
opinion, we denied this motion and suggested that
the Department of Justice take the matter up with the
Department of Homeland Security. Apparently time did
not allow the issue to percolate up to senior officials, but
a local immigration officer took the position that Mallon
had a legal entitlement to be returned to the United
Kingdom immediately after release from prison. There
followed a second motion, this time seeking a brief delay
in release. That motion was granted (see Appendix B),
and on the afternoon following oral argument we issued
a decision (see Appendix C). This opinion explains that
judgment.
Mallon’s principal submission is not that we must
agree with the district judge as an original matter, but
that we may ask only whether the judge abused her dis-
cretion. That deferential standard of appellate review is

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4 No. 03-2049
specified by Koon v. United States, 518 U.S. 81, 92-100
(1996). More recently, however—and after the district
judge pronounced Mallon’s sentence—Congress amended
18 U.S.C. §3742(e)(4), the provision on which Koon relied.
Until last April, that statute required appellate judges
to “give due deference to the district court’s applica-
tion of the guidelines to the facts.” Section 401(d) of the
Prosecutorial Remedies and Tools Against the Exploitation
of Children Today Act of 2003 ( PROTECT ACT ), Pub. L. No.
108-21, 117 Stat. 650, amends §3742(e) to provide:
Upon review of the record, the court of appeals
shall determine whether the sentence— . . .
(3) is outside the applicable guideline
range, and
(A) the district court failed to provide
the written statement of reasons re-
quired by section 3553(c);
(B) the sentence departs from the appli-
cable guideline range based on a factor
that—(i) does not advance the objec-
tives set forth in section 3553(a)(2); or
(ii) is not authorized under section
3553(b); or (iii) is not justified by the
facts of this case; or
(C) the sentence departs to an un-
reasonable degree from the applicable
guidelines range, having regard for
the factors to be considered in impos-
ing a sentence, as set forth in section
3553(a) of this title and the reasons for
the imposition of the particular sen-
tence, as stated by the district court
pursuant to the provisions of section
3553(c); . . . .
. . .

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No. 03-2049 5
The court of appeals shall give due regard to the
opportunity of the district court to judge the credi-
bility of the witnesses, and shall accept the find-
ings of fact of the district court unless they are
clearly erroneous and, except with respect to de-
terminations under subsection (3)(A) or (3)(B), shall
give due deference to the district court’s applica-
tion of the guidelines to the facts. With respect
to determinations under subsection (3)(A) or (3)(B),
the court of appeals shall review de novo the dis-
trict court’s application of the guidelines to the
facts.
So although resolutions of contested issues of fact stand
unless clearly erroneous, with respect to departures on
one of the grounds listed in §3742(e)(3)(B) “the court of
appeals shall review de novo the district court’s applica-
tion of the guidelines to the facts.” If after independent
consideration the court of appeals finds a departure justi-
fied, then the extent of the departure must be reviewed
deferentially under Koon’s standard; that’s the effect of
omitting §3742(e)(3)(C) from the last sentence of the
amended statute.
The amendment became effective on April 30, 2003, when
the President signed the enrolled bill. What becoming
“effective” means may depend on the nature and tim-
ing of the affected matters. For example, §401(g) of the
PROTECT ACT limits to two the number of levels a district
judge may subtract for the defendant’s acceptance of re-
sponsibility, unless the prosecutor consents to the sub-
traction of a third level. Mallon received a three-level
reduction for his guilty plea, a step authorized by the
Guidelines in force at the time, and the prosecutor sen-
sibly does not contest it now. New laws presumptively
operate prospectively and do not alter the legal conse-
quences of completed acts. See, e.g., Landgraf v. USI Film
Products, 511 U.S. 244 (1994). But appellate review of

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6 No. 03-2049
Mallon’s sentence lay in the future as of April 30, 2003, so
we must apply the new standard of review. See United
States v. Thurston, 338 F.3d 50, 69-72 (1st Cir. 2003).
Not so, Mallon replies. He contends that applica-
tion would be retroactive—indeed, would violate the
Constitution’s ex post facto clause—because it would
alter the consequences of his completed criminal conduct.
Yet §401(d) of the PROTECT ACT does not change the statu-
tory penalties for crime, affect the calculation of the
Guidelines range, or alter the circumstances under which
departures are permitted. It changes who within the fed-
eral judiciary makes a particular decision, but not the
legal standards for that decision. Instead of one district
judge, three appellate judges now decide whether a de-
parture is justified. An increase in the number of judges
who must consider an issue reduces the variance of de-
cisionmaking but should not affect the mean or median
outcome.
Justice Chase offered in Calder v. Bull, 3 U.S. (3 Dall.)
386, 390 (1798), what has become the canonical definition
of an ex post facto law. “1st. Every law that makes an ac-
tion done before the passing of the law, and which was
innocent when done, criminal; and punishes such action.
2d. Every law that aggravates a crime, or makes it great-
er than it was, when committed. 3d. Every law that
changes the punishment, and inflicts a greater punish-
ment, than the law annexed to the crime, when commit-
ted. 4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in
order to convict the offender.” See also, e.g., Stogner
v. California, 123 S. Ct. 2446, 2449-55 (2003); Carmell
v. Texas, 529 U.S. 513, 539 (2000). The punishment that
“the law” annexed to Mallon’s crime—which is to say,
the statutory maximum—is unchanged. The Sentencing
Guidelines, which likewise stand unchanged, are not “laws”

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No. 03-2049 7
in the first place. See United States v. Johnson, 335 F.3d
589 (7th Cir. 2003); Scott v. United States, 997 F.2d 340
(7th Cir. 1993). Only §3742(e), which allocates authority
between district and circuit judges, has been affected.
Procedural innovations that don’t tinker with substance
as a side effect are compatible with the ex post facto
clause. Dobbert v. Florida, 432 U.S. 282 (1977); Beazell v.
Ohio, 269 U.S. 167 (1925). Section 401(d) of the PROTECT
ACT is procedural only and thus must be used on this
appeal.
The district court’s four-level departure for “severely
diminished capacity to make good judgments” was based
on U.S.S.G. §5K2.13, which provides: “A sentence below
the applicable guideline range may be warranted if the
defendant committed the offense while suffering from a
significantly reduced mental capacity.” This ground of
departure is unavailable if “the facts and circumstances
of the defendant’s offense indicate a need to protect the
public because the offense involved actual violence or a
serious threat of violence”; the prosecutor does not con-
tend that Mallon’s crime “involved actual violence or a
serious threat of violence”. Instead the prosecutor’s posi-
tion is that the record does not establish “significantly
reduced mental capacity.” We must accept the district
court’s findings of fact unless they are clearly erroneous,
but even this deferential standard does not shelter a find-
ing (which is at best implicit) that Mallon had in Febru-
ary and March 2002 a mental condition disposing him
to pedophilia.
Mallon suffers from heart disease. In 1993 he had a
heart attack, followed by quadruple bypass surgery. In
December 2001 he had another heart attack, after which
a stent was inserted into one artery. He takes medication:
beta blockers, blood thinners, and cholesterol reducers.
One major artery has only 20% of normal flow. Tony
Allen Fletcher, a clinical neuropsychologist, gave evidence

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8 No. 03-2049
(via affidavit) that Mallon’s heart problems have led to
a mental deterioration that curtails his ability to resist
impulses and causes him to act strangely. Yet Fletcher,
who is not a cardiologist, did not refer to any medical
literature establishing or even suggesting that heart
disease causes (or removes inhibitions against) pedophilia.
(Fletcher’s report does not mention any scholarly litera-
ture, whether descriptive or empirical.) Although Fletcher
observed that vascular problems can cause hypoxia, which
may alter behavior, he did not conduct the tests that
would have been necessary to determine whether Mallon
suffered from hypoxia during the critical times (or, indeed,
has ever suffered from that condition). Fletcher stated
that Mallon had reported some delusions and hallucina-
tions (reports Fletcher believed), but he did not discuss
whether Mallon had been delusional during the time of
the offense, whether these delusions could have led to
the offense Mallon committed, or whether the established
changes in Mallon’s behavior (he became withdrawn and
disorganized during 2000 and 2001) affected his propensity
to commit crimes. No one in his family, or at the Ulster-
Scots Agency, thought at the time that Mallon needed
mental-health intervention.
The prosecutor offered evidence from Dr. Stephen
Dinwiddie, a psychiatrist, calling Fletcher’s reasoning into
question. Dinwiddie noted that Mallon had not shown
any signs of mental abnormality that might be caused
by oxygen deficiency during the seven years after his by-
pass surgery in 1993. Dinwiddie continued: “Fletcher’s
speculation that [Mallon’s] cardiac condition might have
played a role also seems unlikely. If the cause of such
periods of confusion and so forth were . . . his prior myocar-
dial infarction and bypass grafting, any remaining cogni-
tive effects would have been of long standing by [2002].
If, on the other hand, some acute episode had caused
hypoxemia shortly before February 6, 2002, [the date of

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No. 03-2049 9
Mallon’s initial contact with Marny,] it is dubious at best
that it could have caused such cognitive problems in the
absence of classical symptoms of coronary artery disease
such as those Mr. Mallon had experienced before. Such
episodes also tend to either resolve or worsen over a short-
er period of time than the weeks in question.” The dis-
trict court did not discuss these shortcomings in Fletcher’s
analysis of Mallon’s condition or analyze the significance
of the fact that Mallon began to inveigle underage girls
in mid-2001, five or six months before his second heart
attack.
It is awfully hard to describe the crime to which Mallon
confessed as the result of poor “impulse control.” Mallon
communicated with Marny for more than a month and
crossed the Atlantic Ocean to meet her. He knew that
what he was doing was wrong; Mallon advised Marny not
to tell her mother what was going on and to delete from
her computer all copies of the communications. And al-
though Fletcher likely was right to conclude that Mallon
suffers from mental disorder of some kind, that would be
so of almost every person today who sets out to deceive and
have sexual relations with underage girls he has never met.
Departures are designed to accommodate the abnormal
case, not the person whose problems are common among
those who commit the crime in question.
The two-level departure for a “combination of factors” is
weaker still. All of the “factors” but one reflect Mallon’s
nationality: he will be in prison far from his family; he
may be ineligible for transitional release, such as a half-
way house, in the concluding months of his sentence; once
the sentence ends, an alien may spend time in custody
awaiting removal. The only factor unrelated to Mallon’s
citizenship is his health: he suffers from skin cancer as
well as heart disease and, although the district judge
believed these to be as treatable in prison as outside, she
thought that they would make imprisonment more stress-

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10 No. 03-2049
ful. None of these reasons, individually or in combina-
tion, justifies a departure. In the past we have disapproved
departures on grounds similar to those the district court
invoked, but the deferential standard of review pre-
cluded closing the door entirely. See, e.g., United States v.
Gallo-Vasquez, 284 F.3d 780 (7th Cir. 2002); United States
v. Krilich, 257 F.3d 689 (7th Cir. 2001); United States v.
Guzman, 236 F.3d 830 (7th Cir. 2001); United States v.
Farouil, 124 F.3d 838 (7th Cir. 1997). Section 401(d) shifts
to the court of appeals the decision whether to depart. We
hold that departure on the grounds the district judge
gave is unwarranted. Combining circumstances that indi-
vidually do not warrant departure does not alter the out-
come.
Age and health are subjects covered by the Guidelines.
Section 5H1.1 says that age is not a basis for departure
unless the defendant is “elderly and infirm” (which Mallon
does not claim to be), and §5H1.4 adds that only an “ex-
traordinary physical impairment” justifies departure on
health grounds for persons not yet “elderly”. We concluded
in Krilich that an impairment is “extraordinary” when
medical treatment within the institution would be marked-
ly inferior to that available outside, or when the medical
condition is one that shortens the life span of institutional-
ized persons compared with those at liberty. The district
court found that Mallon does not satisfy these conditions;
he does not argue otherwise.
As for Mallon’s nationality: §5H1.10 provides that
national origin is not relevant to the sentence. Citizenship
often differs from national origin, but, as we observed
in Vasquez and its predecessors, a departure based on
alienage has the effect of reducing sentences for persons
whose national origin is outside the United States. Consider
the fact that any prison in the United States is far from
Mallon’s friends and family in Northern Ireland. Distance
reduces the frequency of visits, which may make custody

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No. 03-2049 11
more onerous—yet many a U.S. national serves time far
from friends and family. A defendant whose family lives
in Maine may be confined in California. Why should a resi-
dent of Northern Ireland get a break denied to a resident
of Maine? It is also important not to exaggerate the effects
of alienage. The district judge expressed concern that
Mallon could be held in custody for months, following
expiration of his sentence, until his return to Northern
Ireland. Delay is likely, however, only when the person
opposes removal; immigration officials were prepared to
repatriate Mallon the day after his release.
What is more, both the United States and the United
Kingdom adhere to the Convention on the Transfer of
Sentenced Persons (the Strasbourg Convention). See 35
U.S.T. 2867, implemented at 18 U.S.C. §§ 4100-15. Under
the Strasbourg Convention, prisoners may be transferred
to their home countries for service of sentence. As far
as we can see, Mallon is eligible for transfer under the
Convention but has not sought its benefits. Prisoners
eligible for transfer under the Strasbourg Convention are
poorly situated to complain about the distance to their
relatives, about diminished access to transitional release
in the United States, and about the potential for extra
detention pending removal. Service of sentence in one’s
native country eliminates all of these problems.
A prisoner who is ineligible for transfer, and as a re-
sult of alienage becomes ineligible for transitional release,
suffers a real disadvantage. This may be the basis of a
departure, but the discount must not exceed the detriment.
Congress has authorized the Bureau of Prisons to move
prisoners into halfway houses or equivalent facilities for
the last 10% of their sentences. 18 U.S.C. 3624(c). For
Mallon, that would have been the last four months of a 41-
month term under the Guidelines. (It is unclear whether
the Bureau of Prisons would use this option for a prison-
er convicted under §2422(b); we assume that it would,

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12 No. 03-2049
without deciding whether that is so.) Halfway houses
are, as the name suggests, facilities that hold their charges
in custody part of the time (usually nights and weekends)
while releasing them during working hours, so they can
begin employment and start the transition to a life of
freedom. Four months in a halfway house may be equiva-
lent to two months in a prison. Thus a district court
might logically trim a sentence from 41 to 39 months
so that the citizen and the alien suffer equal disutility
from the conviction. The district judge’s two-level depar-
ture, by contrast, cut the low end of the range from 41
months to 33 months. If it turns out on remand that
Mallon cannot be transferred to the United Kingdom
under the Strasbourg Convention, and if a U.S. citizen
convicted under §2422 would be eligible for transitional
placement under §3624(c), then the district court would be
authorized to depart from the range by two months.
Otherwise, however, the Guidelines’ range must be re-
spected.
Throughout the hearing that preceded the imposition of
sentence, the district judge made it clear that she views
the Guideline range of 41 to 51 months as too severe for
a person such as Mallon, who before setting out to troll
the Internet for young girls had been a model citizen. The
judge stressed that he led a life of good works both as a
civil servant and in his community, and that he helped
to heal the religious rift in Northern Ireland. Moreover,
Mallon has experienced shame, a loss of standing in
the community, a decline in future consulting income,
and other injuries that serve as punishments on top of
a prison term; many other violators of §2422 will not
experience these losses to the same degree, so imposition
of a Guideline-based prison sentence means that Mallon’s
total punishment may exceed the norm for this offense.
The difficulty, as the district court recognized, is that
the Sentencing Guidelines declare considerations of these

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No. 03-2049 13
kinds inappropriate as reasons for sentence reductions,
see §5H1.11, unless the crime may be called “aberrant
behavior” within the scope of §5K2.20. Mallon’s con-
duct was “aberrant” in the lay but not the legal sense. The
Sentencing Commission defines the term as “a single
criminal occurrence or single criminal transaction that (A)
was committed without significant planning; (B) was of
limited duration; and (C) represents a marked devia-
tion by the defendant from an otherwise law-abiding
life.” U.S.S.G. §5K2.20 Application Note 1. Mallon sat-
isfied subpart (C), and perhaps (B), but not (A). This
crime was elaborately planned. Perhaps the Sentencing
Commission should afford district judges more latitude
under §5K2.20 to recognize the good a person has done in
life, and to adjust sentences on account of shame, lost
income, and other kinds of extra-legal punishment. Under
the Guidelines as they stand, however, a departure could
not be based on §5K2.20, and restrictions deliberately
placed on the aberrant-behavior departure may not be
circumvented.
V ACATED AND R EMANDED

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14 No. 03-2049
Appendix A
Order issued August 22, 2003:
The United States, which has taken an appeal seeking
a higher sentence in this criminal case, has filed a motion
for a stay of Mallon’s removal to Northern Ireland, a step
that may well occur before the end of September. The
United States represents that Mallon will be released
from prison on September 17, the day before oral argu-
ment, and will immediately be taken into administrative
custody pending removal—which, given his felony convic-
tion, is likely to be swift. The United States contends that
removal should be stayed so that an order by this court
increasing the length of Mallon’s lawful sentence could
be implemented without using the cumbersome extradi-
tion process to retrieve him from Northern Ireland follow-
ing removal.
Neither the prosecutor’s request, nor the defendant’s
response, remarks the strangeness of one Cabinet depart-
ment (the Department of Justice) asking the judiciary
to block another (the Department of Homeland Security)
from acting. Why is this request being made via the judi-
ciary, rather than from one Cabinet officer to another?
Disagreements within the Executive Branch should be
resolved by the President and his subordinates, not by
the Judicial Branch. They are justiciable only if one of
the contestants is an independent agency (whose mem-
bers cannot be summarily removed) or some equivalent
promise of independence has been made. See United States
v. Nixon, 418 U.S. 683, 692-97 (1974).
Because the request was made to the Judicial Branch,
however, it is essential to establish the requirements
of judicial action, such as jurisdiction. Given 8 U.S.C.
§1252(g), it is impossible to see how we could block the
execution of a removal order whose validity is uncontested.
See Reno v. American-Arab Anti-Discrimination Committee,

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No. 03-2049 15
525 U.S. 471 (1999). What is more, even if we had juris-
diction, a stay would be appropriate only if there were
some probability that the removal order would be set aside,
and the Department of Justice does not say that removal
would be unlawful. Courts do not issue stays of valid ad-
ministrative orders on general equitable grounds, as the
Department of Justice asks us to do. The Department
is quick to protest when a private litigant makes such a
request.
The Department of Justice’s request for a delay of
removal should be addressed to the Department of Home-
land Security (and perhaps to the State Department, whose
portfolio includes extradition), not the Judicial Branch.
What a court might do, perhaps, is delay the handover
of Mallon from the Bureau of Prisons to the Bureau of
Immigration and Customs Enforcement. Such an order,
giving the Department of Justice the authority to keep
Mallon in its own custody, would be similar to a stay
of release pending appellate review of a district court’s
order issuing a writ of habeas corpus, or it could be
analogized to pre-sentencing detention following convic-
tion, cf. United States v. Krilich, 178 F.3d 859 (7th Cir.
1999). It could be proper if the United States is likely to
succeed on its appeal. Apparently a delay of even one day
would enable this court to announce a decision on the
merits on the day of oral argument. A single day’s delay
could be justified without meeting an especially steep
burden. The motion for a stay of removal accordingly
is denied, but without prejudice to the filing of a prop-
er motion for a delay of release from the Bureau of
Prisons’ custody. Before filing such a motion, however, the
United States should try to resolve this matter within
the Executive Branch.

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16 No. 03-2049
Appendix B
Order issued September 16, 2003:
John Mallon is scheduled for release from prison on
September 17, 2003, the day before oral argument in this
court. The United States contends that Mallon should
have received a sentence within the range of 41 to 51
months’ imprisonment, as opposed to the actual sentence
of 21 months that has led to the currently calculated re-
lease date. In light of the imminence of oral argument,
the problems potentially created by discontinuous peri-
ods of custody, and the fact that the United States’ appeal
seeks only to ensure compliance with the Sentencing
Guidelines (it does not request an upward departure),
Mallon should remain in custody until the appeal is re-
solved. We will endeavor to announce a decision promptly
after argument.
Accordingly, the Bureau of Prisons is directed to main-
tain Mallon in its custody pending further order of the
court.

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No. 03-2049 17
Appendix C
Decision issued September 18, 2003:
The judgment of the district court is vacated, and the
case is remanded with instructions to increase Mallon’s
sentence under the Sentencing Guidelines. Pending resen-
tencing, Mallon must remain in the custody of the Bureau
of Prisons. See United States v. Krilich, 178 F.3d 859 (7th
Cir. 1999). In due course the court will issue an opinion
explaining this decision. Issuance of our mandate will
be deferred until then. The time to seek rehearing is here-
by extended, so that any petition is due 14 days from the
date on which our opinion is issued.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-6-03

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