Pre-Booker Sentence Affirmed Because Court Imposed Identical Alternative Sentence; Abstracts and Uncertified Docs Suffice to Prove Priors
U.S. v. Zuniga-Chavez, --- F.3d ----, 2006 WL 2753852 (10th Cir. September 27, 2006)
This took a long time to decide; briefed before Booker.
District court’s non-constitutional Booker error was harmless in spite of sentencing D at the low end of the guideline range; the court explicitly imposed an alternative sentence (equal to the low end of the GL range) as the sentence it would impose should the GL be found unconstitutional. Moreover, court carefully considered the GL , sentencing materials and argument, and its failure to state it had considered §3553(a) factors not error.
The 10th rejected D’s argument that the district court erred in relying on evidence of Defendant's five prior California state convictions as demonstrated by a certified docket sheet, a certified copy of an “abstract judgment,” and court case summaries, to raise Defendant's offense level and criminal history. D argued that these were insufficiently reliable under Shepherd.
The 10th said they were sufficiently reliable to support the FACT of prior conviction. The 10th distinguishes Shepherd, which dealt with a prior conviction under a broad or ambiguous statute which contains elements which do and which do not support designation of the prior conviction as, for example, an aggravated felony. Shepherd requires reliable documents which show the elements for which the D was found guilty: jury instructions, or bench trial findings and rulings, or (in a pleaded case) the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea.
This took a long time to decide; briefed before Booker.
District court’s non-constitutional Booker error was harmless in spite of sentencing D at the low end of the guideline range; the court explicitly imposed an alternative sentence (equal to the low end of the GL range) as the sentence it would impose should the GL be found unconstitutional. Moreover, court carefully considered the GL , sentencing materials and argument, and its failure to state it had considered §3553(a) factors not error.
The 10th rejected D’s argument that the district court erred in relying on evidence of Defendant's five prior California state convictions as demonstrated by a certified docket sheet, a certified copy of an “abstract judgment,” and court case summaries, to raise Defendant's offense level and criminal history. D argued that these were insufficiently reliable under Shepherd.
The 10th said they were sufficiently reliable to support the FACT of prior conviction. The 10th distinguishes Shepherd, which dealt with a prior conviction under a broad or ambiguous statute which contains elements which do and which do not support designation of the prior conviction as, for example, an aggravated felony. Shepherd requires reliable documents which show the elements for which the D was found guilty: jury instructions, or bench trial findings and rulings, or (in a pleaded case) the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea.
posted by Anonymous at 10:30 AM
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