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February 24, 2005

Booker remands in the 8th and the 10th

Though not quite as thrilling as the Booker work yesterday of the Second Circuit in Williams (discussed here), the Third Circuit in Ordaz (discussed here), and the Sixth Circuit in a bunch of cases (discussed here), the Eighth and the Tenth Circuits have also been Booker active lately.

Given the Eighth Circuit's recent pattern of suspect Booker affirmances (discussed here), the court's remand on Booker grounds in US v. Selwyn, No. 04-2164 (8th Cir. Feb. 23, 2005) (available here), is quite noteworthy.  It is unclear whether the defendant in Selwyn raised a precise Sixth Amendment claim at sentencing, but he did object to the PSR's calculation of drug quantities.  In addressing Booker claims on appeal, the Eighth Circuit says "Selwyn objected to drug quantity findings, preserving this issue for appeal.... We therefore remand to the district court for resentencing [and] do not address Selwyn's additional claims beyond noting that they may be considered at the new sentencing proceeding."

The Tenth Circuit's unpublished rulings in US v. Arroyo-Berzoza, 2005 WL 408062 (10th Cir. Feb 22, 2005), is dated Tuesday but just came on-line. It serves as a confirmation of the circuit's important conclusion in Labastida-Segura (discussed here) that, even when there is no Sixth Amendment violation below (here because all relevant sentencing facts were admitted by Arroyo-Berzoza), the harmless error analysis suggested by Booker means a remand is still necessary when the district judge sentenced at the bottom of the applicable guideline range so that the district court can decide now in the first instance what to do now that the guidelines are advisory.

February 24, 2005 at 08:39 AM | Permalink


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