Thursday, August 24, 2006

Third Circuit affirms above-guidelines sentence; alternative sentencing ground is harmless error

The Third Circuit affirmed another above-guidelines sentence in an appeal contending that the plea was involuntary and the sentence unreasonable. In United States v. Schweitzer, No. 05-1301 (3d Cir. July 11, 2006), the court imposed a sentence nearly twice the bottom of the advisory range, noting that the sentence reflected consideration of the factors set forth in §3553(a). At the government’s suggestion, the court amended its decision to adopt an alternative sentencing ground, as an upward departure based on the guidelines’ under-representation of Schweitzer’s criminal history and likelihood of recidivism. On review, the Third Circuit determined that Schweitzer’s plea colloquy conformed to Rule 11 and constitutional mandates. The Third Circuit also held that the alternative, post hoc rationale of the upward departure had no effect on his sentence, which would have been imposed regardless, and thus any error was harmless.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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