« An amended version of US v. Johns | Main | Morning Blakely stories »

September 22, 2004

First Circuit plain error approach to Blakely

Proving yet again (as stressed here) that Blakely justice and procedure now depends very much on the Circuit in which a case is litigated, in US v. Savarese, No. 04-1099 (1st Cir. Sept. 22, 2004), the First Circuit again gave a Blakely claim short shrift. In Savarese, similar to the approach it took in Morgan (discussed here), the First Circuit relies on plain error doctrine to reject a Blakely claim:

[W]e conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.

The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese's sentence for plain error....

[T]he defendant did not dispute the factual basis underlying any of the enhancements. Under the Supreme Court’s decision in Johnson [v. United States, 520 U.S. 461 (1997)], we conclude that this forecloses a finding of plain error.... [T]he district court’s error under Blakely, if any, in finding the facts underlying the enhancements of the defendant’s sentence was not plain error.

September 22, 2004 at 11:55 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d8353daf2a69e2

Listed below are links to weblogs that reference First Circuit plain error approach to Blakely:

Comments

hp hstnn-db35 battery

Posted by: laptop battery | Oct 14, 2008 5:39:14 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB