Booker Action in 10th Circuit
In US V. Labastida-Segura, ___F.3d ___, 2005 WL 273315 (No. 04-1311, 2/4/05) the Circuit remanded a reentry after deportation case for resentencing where the defendant had preserved a Blakely objection to the constitutionality of the guidelines. The court found remand to be the appropriate remedy even though there was no judicial factfinding at sentencing. With respect to plain error, the court noted that the defendant had been sentenced at the low end of the guideline range under then mandatory guidelines and noted that the appellate court "cannot exercise the district court's discretion."
The court has scheduled en banc oral arguments in two Booker cases on March 7 in Oklahoma.
The first case is US v. Sergio Gonzalez-Huerta 04-2045, a reentry after deportation case. The court ordered supplemental briefing on the issues of whether, in light of Booker, defendant's sentence must be reversed and remanded for additional proceedings. In particular, counsel was directed to address whether the absence of judicial factfinding at sentencing limits the impact of Booker, whether, assuming error, that error was structural. Counsel also was required to address what relief, if any, is appropriate under a plain error analysis, and whether the error was harmless. Mr. Gonzalez is represented by AFPD Jenine Jensen of the Colorado FPD Appellate Division. (Labastida, above, postdates the court's order regarding supplemental briefing and en banc argument. Labastida gives at least some indication of how at least two judges will go on some of these issues.)
The second case is US v. Gerald Yazzie 04-2152, a child sex offense case. The court ordered supplemental briefing on the issues of whether, in light of Booker, defendant's sentence was imposed in violation of the Sixth Amendment, whether the Supreme Court's failure to invalidate 18 USC 3553(b)(2) (added by the PROTECT Act) means the guidelines remain mandatory for child crimes and sex offenses such as the offense in this case, whether 18 USC 3553(b)(2) applies to defendant's case since it was enacted after the offense was committed, and assuming that the sentence violated the Sixth Amendment, what relief is Mr. Yazzie entitled to under a plain error standard of review. Mr. Yazzie is represented by NM CJA lawyer Charles Finley.
The court has scheduled en banc oral arguments in two Booker cases on March 7 in Oklahoma.
The first case is US v. Sergio Gonzalez-Huerta 04-2045, a reentry after deportation case. The court ordered supplemental briefing on the issues of whether, in light of Booker, defendant's sentence must be reversed and remanded for additional proceedings. In particular, counsel was directed to address whether the absence of judicial factfinding at sentencing limits the impact of Booker, whether, assuming error, that error was structural. Counsel also was required to address what relief, if any, is appropriate under a plain error analysis, and whether the error was harmless. Mr. Gonzalez is represented by AFPD Jenine Jensen of the Colorado FPD Appellate Division. (Labastida, above, postdates the court's order regarding supplemental briefing and en banc argument. Labastida gives at least some indication of how at least two judges will go on some of these issues.)
The second case is US v. Gerald Yazzie 04-2152, a child sex offense case. The court ordered supplemental briefing on the issues of whether, in light of Booker, defendant's sentence was imposed in violation of the Sixth Amendment, whether the Supreme Court's failure to invalidate 18 USC 3553(b)(2) (added by the PROTECT Act) means the guidelines remain mandatory for child crimes and sex offenses such as the offense in this case, whether 18 USC 3553(b)(2) applies to defendant's case since it was enacted after the offense was committed, and assuming that the sentence violated the Sixth Amendment, what relief is Mr. Yazzie entitled to under a plain error standard of review. Mr. Yazzie is represented by NM CJA lawyer Charles Finley.
posted by Paul M. Rashkind at 5:55 PM
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