Wednesday, March 23, 2005
In US v. Spivey, (No. 04-2057, 3/22/05), the Circuit issued its most extensive (although still brief) discussion of plain error. The Court stated that plain error analysis applies since no Sixth Amendment objection was raised at sentencing. The Court then noted that it was "at least arguable" that the sentence did not violate the Sixth Amendment since defense counsel admitted to the enhancement in question which increased the defendant's criminal history.
Even without the Sixth Amendment violation, however, the Court found remand was required under Booker because "the District Court's mandatory application of the Guidelines to Spivey's sentence was in error, and we cannot say from the record before us whether that error 'had a substantial and injurious effect or influence in determining the [sentence].'" (Citing Kotteakos). The Court then concluded with the language used in all its Booker remands: "Therefore, having determined that the sentencing issues Spivey raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." This case thus continues the Circuit's policy of remanding for resentencing in any case where the district court viewed the guidelines as mandatory, regardless of whether there was an objection and regardless of whether there was a Sixth Amendment violation.
In US v. Simmons (No. 03-2013 3/22/05), the Circuit remanded for resentencing under Booker even though the defendant had received an upward departure. The defendant there, prior to Blakely, had originally appealed his sentence of 48 months on the ground that the judge improperly departed upward from the guideline range based on underrepresentation of criminal history. Defense counsel sought to supplement after Blakely, and the Court held the case under advisement pending Booker. In remanding, the Court said only that the Booker sentencing issues "are best determined by the district court in the first instance." This case makes clear that remand is appropriate even when the sentence was pursuant to an upward departure.
Monday, March 21, 2005
Monday, March 14, 2005
Mitchell challenges his sentence on the basis of United States v. Booker. . . Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for re-sentencing in accordance with Booker.
Thursday, March 03, 2005
The Court ruled that the second set of exculpatory material consisted of documents in the possession of a government agency that was not part of the "prosecution team," and that therefore under Brady the government's failure to turn these document over to the defense also did not constitute "suppression." As the Court explained, "[T]he prosecution is only obligated to disclose information known to others acting on the government's behalf in a particular case."
Addressing a separate habeas challenge to the jury instructions, the Court ruled that defendant had defaulted this claim and had not established "cause" for his failure to raise it at the trial or on the direct appeal.
Wednesday, March 02, 2005
In each case involving a Booker remand, the Court has included some variation of the following statement: "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." In addition to the Ordaz and Davis decisions discussed below, the Circuit has recently remanded for resentencing in the following unpublished and not precedential cases (click on case to pull up the decision): US v. Nayef Yousef (2/22/05); US v. Arthur Able (2/24/05); US v. Edwin Marquez (2/28/05); US v. Vivian Wells (3/3/05).
US v. Able is particularly noteworthy since it does not appear to have involved any Sixth Amendment violation under Booker, and the defendant was sentenced at the top of the guideline range of 18 to 24 months. Nonetheless, the Circuit, noting that "the district court clearly treated the Sentencing Guidelines as mandatory rather than advisory," did not find that the error of applying the mandatory guideline range was harmless, but instead remanded so that the district court could determine the sentencing issues "in the first instance."
Complete ban on computer and internet use not sufficiently tailored to the risks of the defendant and violated First Amendment norms.
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