February 23, 2005
A 5th Circuit Booker sighting (or citing)
Last week I put out this APB for the Fifth Circuit, and a reader has now pointed me to what I believe is the first mention of Booker from the Fifth Circuit. Here is the full text of the per curiam order in US v. Barrera-Saucedo, 04-20943 (5th Cir. Feb. 22, 2005) (available here):
IT IS ORDERED that appellant’s motion to expedite the appeal is granted.
IT IS FURTHER ORDERED that appellant’s motion to vacate and remand in light of USA v. Booker is granted.
I do not have any details about the case, and thus without more explanation from the 5th Circuit it is hard to tell if this is a consequential ruling. It seems, at least for now, that the 5th is continuing to exercise its right to remain silent on Booker.
February 23, 2005 at 09:01 AM | Permalink
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I suppose the 5th can "take the 5th" if it desires. It is somewhat surpising though as it was so fast out of the gate with Pineiro. Maybe because Pineiro was so wrong, the 5th is taking a cautious approach and weighing its options before leaping into the fray.
Posted by: Thomas J. Yerbich | Feb 23, 2005 3:12:48 PM
US v. ORDAZ, No. 04-1671 (3d Cir. February 23, 2005)
Defendant's sentence for a drug conviction is vacated where it was
impermissible for the district court, as opposed to a jury, to make
a finding as to drug weight for sentencing purposes.
Posted by: Howard O. Kieffer | Feb 23, 2005 4:01:16 PM