Monday, February 14, 2005

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 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.

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