Thursday, February 24, 2005
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 obstruction of justice were "best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker." Id.
The Court then rejected Ordaz's argument that the fact of his prior convictions should have been submitted to the jury. The Court stated that it did not "gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries." Id. at *5. Nevertheless, the Court concluded that Almendarez-Torres remained binding. Accordingly, it held that the district court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, despite the fact that the sentences were based, in part, on facts found by a judge, rather than a jury.
Friday, February 18, 2005
Thursday, February 17, 2005
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 go into an explanation or discussion of what Booker held. In essence, the letter should state that Booker applies in this particular case because x, y, and z occurred at sentencing. The Court has read Booker and does not need argument about the reasoning in Booker.
Monday, February 14, 2005
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 evidentiary issue: whether the district court erred in permitting an officer to testify as an expert in response to a hypothetical question that, in his opinion, the circumstances specified in the question "would be with possession with intent to deliver the narcotics." The circumstances specified in the question, which mirrored the facts at trial, were: 5 people in a car, 4 of them possessing guns, 1 with a gun plus 12 packets, another with a gun plus 19 packets, and a third with a gun plus 44 packets. The Circuit affirmed, holding that the officer's testimony was proper expert testimony, and since it was in response to a hypothetical question, it did not improperly state an opinion about the defendants' state of mind.
Friday, February 11, 2005
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) http://www.ca3.uscourts.gov/opinarch/034174np.pdf
Since this appears to have been on review for plain error, it seems likely that the Circuit has concluded it will be remanding for resentencing most if not all cases where a Blakely/Booker issue has been raised, and that it is putting the finishing touches on a soon-to-be-issued precedential opinion. I am hearing that "soon" now means next week, or the following week.
Thursday, February 10, 2005
-- David McColgin, AFD Philadelphia
The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.
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