January 21, 2005
The 8th Circuit remands!!
In what I believe is the first consequential Booker circuit court ruling, the Eighth Circuit remanded a case for resentencing on Blakely/Booker grounds today in US v. Coffey, No. 04-2176 (8th Cir. Jan. 21, 2004) (available here). The brief discussion of Blakely/Booker in the Coffey opinion is a bit decaffeinated, but the decision is still important for suggesting that, at least in the Eighth Circuit, all preserved Blakely errors result in remands for resentencing. Here's the key passage (with the citations trimmed):
Finally, Coffey claims that he was sentenced in violation of his Sixth Amendment right to a jury trial, as recognized in Blakely. He argues that the district court impermissibly held him responsible for a higher drug quantity than the amount the jury attributed to him. Prior to sentencing, Coffey asserted that there was insufficient evidence to calculate any drug quantity against him. The district court overruled his objection and sentenced Coffey using an offense level applicable to 2.7 kilograms of crack, despite no jury finding in support of this amount.
Whether or not Blakely applied to the United States Sentencing Guidelines is no longer an open question: the Supreme Court has now held that it does. Booker holds the mandatory guidelines scheme employed by federal courts is unconstitutional. Instead, the Guidelines are now "effectively advisory," and defendants such as Coffey who have preserved the issue are entitled to new sentencing proceedings.[FN 5] We thus remand for resentencing in accordance with Booker.
[FN 5] We express no opinion on whether a sentence handed down under the mandatory Guidelines system is plainly erroneous, nor do we consider the outer limits of precisely what will preserve the issue.
January 21, 2005 at 12:38 PM | Permalink
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I'm not so sure this wasn't a plain error case. The opinion doesn't indicate that defendant objected to a judge-based factual determination, only that he argued the evidence was insufficient to warrant the enhancement. So, while the 8th Circuit doesn't appear to recognize this, am I wrong in believing that any defendant who challenged an upward adjustment on factual grounds can now use this decision to obtain a remand, despite not making a specific Blakely/Booker-based objection?
Posted by: Alex E. | Jan 21, 2005 1:42:41 PM
This inferentially confirms my view that Booker and Blakely, taken together, establish that Apprendi errors are structural. Thus, in state courts where states may be addressing whether a Blakely error requires a remedy, the Neder majority test does not apply (and should never have applied) to Apprendi errors. Thus, only if the omitted aggravator is implicit in the verdict (Scalia's test) may an appellate court affirm in spite of a Sixth Amendment error.
Posted by: Steve Sanders | Jan 21, 2005 2:08:00 PM
If anyone sees a resentence in 7th would you e-mail me please!!!!!
Posted by: Shelly | Jan 22, 2005 11:06:35 AM
The question is, how did Coffee "preserve the error"? I guarentee you he didn't object at trial on Apprendi grounds - if he did, boy did he get lucky. I'll be he filed some sort of Blakely objection with the 8th Cir last summer, and that was enough to "preserve" the issue. Anyone have any more information?
Posted by: Ben | Jan 23, 2005 5:28:37 PM
Now that the 8th Circuit has seemingly remanded for preservation of the Blakely error, how about a defendant who has preserved the APPRENDI error at trial and in appeal (mandate Sept 2003) but was shot down? This was in the 11th Circuit.
Posted by: Anne | Jan 23, 2005 11:44:38 PM
Thank you for the insightful information and thoughts.
A former white collar guest of the BOP, now on sup. rel.
Posted by: Jack | Jan 24, 2005 7:11:36 AM