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Showing posts from February, 2005

3d Cir rejects Booker challenge to prior convictions

In U.S. v. Ordaz, 2005 WL 418533 (3d Cir. Feb. 23, 2005), the Third Circuit put an end to Blakely/Booker challenges regarding prior convictions. Ordaz was convicted after trial of various drug and conspiracy offenses. Relying on Apprendi and Blakely, he challenged the district court's drug weight determination (and other enhancements) and further argued that the fact of his purported prior convictions needed to be found by a jury before the district court could use them to enhance his sentence.

In its opinion, the Third Circuit briefly discusses Booker and concludes that the "net result" of Booker "was to delete the mandatory nature of the Guidelines and transform them to advisory guidelines for the information and use of the district courts in whom discretion has now been reinstated." Ordaz, 2005 WL 418533 at *3. Applying Booker to Ordaz's case, the Court concluded that Ordaz's challenges to drug weight, leader/organizer, use of a firearm, and obstructi…

3rd Cir issues orders regarding Booker letters

The 3rd Circuit has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less. The order further requires that the letter "must succinctly state the factual and legal basis of the challenge. The letter may not contain argument. Cf. Fed R. App. P. 28(j). . . . Further briefing will be permitted only at the court's direction."

These letters have been sent out in cases in all different procedural postures, and thus it appears the Circuit will be using these letters as the primary means of screening cases for remand under Booker. It is not clear whether we can still expect a broad policy opinion addressing Booker and remands in the near future, but it now looks doubtful.

As to the distinction between stating the "legal basis" but not presenting "argument," it appears that the Court wants counsel simply to apply Booker to the facts of the case, and not to g…

3rd Cir's first pub'd decision on Booker

In US v. Kevin Davis (available here) the 3rd Cir has finally issued a published opinion addressing, albeit very briefly, the issue of remands under Booker. The discussion, consisting of two sentences at the very end of the opinion, is as follows:
Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.
Although the Circuit does not discuss plain error, it would appear that the issue was probably not raised at the sentencing, and that the Court is signaling that it will be taking a broad approach to remands under Booker. Evidently the Court's discussion here is so short because the Court is about to issue a broad policy opinion addressing Booker issues in full, hopefully this week.

The bulk of the opinion addresses an e…

Unpub'd 3rd Cir decision remanding under Booker

As Professor Berman notes on his up-to-the-minute sentencing blog,, the Third Circuit has finally issued an opinion, albeit an unpublished and non-precedential one, that addresses the issue of remand under Booker. The defense raised a Blakely objection to the sentence imposed through a motion for summary remand shortly after Blakely was decided, which the Court held C.A.V. pending a decision in Booker. The Court simply states,

The Supreme Court also held that the Booker decision applies to all cases on direct review, and remanded the cases involved in Booker for resentencing. Id. at 769. Accordingly, Booker applies to the case before us. Having determined that the sentencing issues Mortimer raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in light of Booker.
US v. Mortimer, (decision a)

Since this appears to have been on revi…

3rd Cir Ruling on Booker expected soon

We have been hearing persistent rumors that the 3rd Circuit will be issuing a broad ruling "soon" on Booker addressing which cases pending on appeal will be remanded for resentencing. Based on the Circuit's prior cases finding plain error and remanding where the incorrect guideline range was applied, e.g., Knight, 266 F.3d 203, 207 (3rd Cir. 2001), it would seem likely that the Circuit will take the broad approach that most circuits are taking and issue remands for resentencing in any case where the judge may have been inclinded to sentence lower under an advisory guideline system.
-- David McColgin, AFD Philadelphia