Court Remands for Resentencing

U.S. v. Clifton, -- F.3d --, 2005 WL 941581 (10th Cir. 4/25/05) - The Court rejects Ms. Clifton's challenges to her convictions for lying to a grand jury about obtaining a cell phone for a drug dealer, but orders resentencing in light of Booker. The reasonable doubt instruction was fine, despite omission of the end of the instruction that "Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." The admission of agent testimony for impeachment purposes, if error, was harmless. The plain error standard was met re: Booker in light of the district court's statement that it would impose a lighter sentence if it could and the Court of Appeals' conclusion that the defendant's sentence was more harsh than necessary to reflect the seriousness of the offense.