Consecutive Supervised Release Sentences "Reasoned and Reasonable"
U.S. v. Cordova, --- F.3d ----, 2006 WL 2411451 (10th Cir. August 22, 2006)
D had a rich and recent history of a series of relatively small caliber federal felony drug convictions followed by violations of supervised releases that had him in and out and in and out of prison. Not the favorite type of just-can’t-adjust returnee in front of the judge, who maxed him out on his latest SR violation, running sentences on two violations consecutively.
D stipulated to the facts supporting the violation, then on appeal argued for the first time that the statute and rule that allows a judge to find facts supporting a violation of supervised release, violated his 6th A right to a jury trial and proof BRD, citing Apprendi. The 10th rejected D’s argument (under a plain error standard), adopting the reasoning of the 2d Cir. that procedural rights (such as to a jury trial and proof BRD) are among those liberty interests forfeited in the context of supervised release. Covering all bases, the 10th observes that after Booker, if a D stipulates to underlying facts supporting a conviction, there is no 6th A right to a jury trial and moreover, Booker does not apply to revocations, and imposition and revocation of SR is left to the discretion of the court.
The maximum and consecutive sentence was reasonable. The 10th said it was dodging setting what the standard of review is after Booker for a court setting consecutive sentences for two violations, but then said the court did not abuse its discretion and that the sentence was reasoned and reasonable. The court indicated on the record that it was very familiar with D and his record and the repeated opportunities it had given him.
D had a rich and recent history of a series of relatively small caliber federal felony drug convictions followed by violations of supervised releases that had him in and out and in and out of prison. Not the favorite type of just-can’t-adjust returnee in front of the judge, who maxed him out on his latest SR violation, running sentences on two violations consecutively.
D stipulated to the facts supporting the violation, then on appeal argued for the first time that the statute and rule that allows a judge to find facts supporting a violation of supervised release, violated his 6th A right to a jury trial and proof BRD, citing Apprendi. The 10th rejected D’s argument (under a plain error standard), adopting the reasoning of the 2d Cir. that procedural rights (such as to a jury trial and proof BRD) are among those liberty interests forfeited in the context of supervised release. Covering all bases, the 10th observes that after Booker, if a D stipulates to underlying facts supporting a conviction, there is no 6th A right to a jury trial and moreover, Booker does not apply to revocations, and imposition and revocation of SR is left to the discretion of the court.
The maximum and consecutive sentence was reasonable. The 10th said it was dodging setting what the standard of review is after Booker for a court setting consecutive sentences for two violations, but then said the court did not abuse its discretion and that the sentence was reasoned and reasonable. The court indicated on the record that it was very familiar with D and his record and the repeated opportunities it had given him.
posted by Anonymous at 9:48 AM
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