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January 18, 2005

In praise of Booker

Howard Bashman at How Appealing has assembled here a collection of today's editorials and op-eds on Booker.  A quick read of these pieces shows fairly consistent praise of the Booker outcome and the (competing?) notions that juries should have a role in sentencing fact-finding and that judges should have more discretion at sentencing.

Considering today's pieces in praise of Booker — as well as prior editorials that run consistently pro-Booker from papers in states as diverse as Colorado, Florida, Georgia, Kentucky, Iowa, Maryland, Massachusetts, Missouri, New York, Pennsylvania, Rhode Island, Texas, Utah, Wisconsin — highlights that the newspapers nationwide are strongly backing the decision and consistently urging Congress to give judges a chance to work within the new system Booker has created.

January 18, 2005 at 09:36 AM | Permalink

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Comments

While we're praising Booker, I wonder if anyone could offer suggestions for me to use in a Second Circuit argument I have tomorrow morning, which will focus front and center on how to proceed under Booker.

In my case, an illegally-reentering alien pleaded guilty to an indictment, without a plea agreement (pursuant to a so-called Pimentel letter in this circuit). He received a guidelines sentence of 70 months, using a standard analysis in which he received a 16 point enhancement for removal after conviction of an aggravated felony. He did not object to any of the guidelines calculations.

The plea and sentence occurred pre-Blakely, but obviously the case is pending on appeal, so the case raises plain error issues and questions about how the "not unreasonable" standard will be applied to similarly-situated cases.

Do we all agree that plain error will apply, as it did to Apprendi cases on direct appeal (at least here in the 2d Cir.) immediately after that decision came out? If not, what are the arguments for and against it with respect to Booker?

I'm planning on arguing that the Court of Appeals can't affirm by making a "reasonableness" assessment on the present record and that it must remand the case on the theory that the district court wasn't allowed to consider personal circumstances under the guidelines, so it would be inappropriate to make that assessment for the first time on appeal. (The defendant is fairly pathetic and older, so a full-fledged analysis might have netted a lower sentence). Should the sentence be vacated or could the court order a limited remand so all the district court could do is make that assessment itself? One wrinkle, the sentencing judge was retired Judge John S. Martin, well known to Blakely wonks, so the re-sentencing judge might have an issue about the extent to which she should defer to his original sentence. (It was at the bottom of the range, with a partially-concurrent aspect to the undischarged term of the defendant's state sentence).

I realize we're early in the game but this case might make some early law, so I'd appreciate any suggestions and comments to help me flesh out these issues, whether supportive or contrary to my client's overall position.

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