Mail Fraud Defendant's Sentence Affirmed Despite Court's Failure to Mention 3553(a) Factors
U.S. v. Paredes, --- F.3d ----, 2006 WL 2411439 (10th Cir. August 22, 2006)
Facts supported application of guideline enhancement under Sec. 2B1.1(b)(9)(A) in fraud case for “relocation” of the scheme in order to avoid detection by law enforcement: witness said scheme was relocated because Utah “became too hot”. Moreover, D did not need to physically relocate himself, he only needed to participate in the re-locating of the scheme, for the enhancement to apply.
Citing Lopez-Flores and Sanchez-Juarez in the same paragraph, the 10th said that although the district court did not specifically mention 3553(a) factors, neither did the D raise non-frivolous factors for a below-guidelines sentence “that would have triggered the district court's obligation to address the factors on the record.” Rather than reviewing this under a plain error standard, however, the 10th found that the D did not overcome the presumption of reasonableness.(Is Hartz’s Lopez-Florez requirement that an objection be made at sentencing to the district court’s methodology still required? Good practice: YES, object, but also raise non-frivolous factors).
The district court’s wishy washy language regarding what its discretion was in sentencing under the guidelines did not indicate constitutional Booker error (treating the GL as mandatory). The district court also in its language indicated that it had discretion and, after all, the 10th will “generally assume that the district court knows the law and applies it correctly.” HA!
Facts supported application of guideline enhancement under Sec. 2B1.1(b)(9)(A) in fraud case for “relocation” of the scheme in order to avoid detection by law enforcement: witness said scheme was relocated because Utah “became too hot”. Moreover, D did not need to physically relocate himself, he only needed to participate in the re-locating of the scheme, for the enhancement to apply.
Citing Lopez-Flores and Sanchez-Juarez in the same paragraph, the 10th said that although the district court did not specifically mention 3553(a) factors, neither did the D raise non-frivolous factors for a below-guidelines sentence “that would have triggered the district court's obligation to address the factors on the record.” Rather than reviewing this under a plain error standard, however, the 10th found that the D did not overcome the presumption of reasonableness.(Is Hartz’s Lopez-Florez requirement that an objection be made at sentencing to the district court’s methodology still required? Good practice: YES, object, but also raise non-frivolous factors).
The district court’s wishy washy language regarding what its discretion was in sentencing under the guidelines did not indicate constitutional Booker error (treating the GL as mandatory). The district court also in its language indicated that it had discretion and, after all, the 10th will “generally assume that the district court knows the law and applies it correctly.” HA!
posted by Anonymous at 9:46 AM
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