February 12, 2005
More (a lot more) notable circuit Booker work
It now seems you cannot even take a Friday night off without missing a lot of Booker action from the circuit courts. In addition to the four circuit dispositions noted yesterday here and here and here, I now can report on six more noteworthy Booker rulings coming from the Second, Fourth, Eighth, Ninth and Tenth Circuits. Here I will provide just a quick summary of the rulings, with links, and later today I hope to comment more broadly on all the circuit action.
From the Second Circuit, US v. Konstantakakos, 2005 U.S. App. LEXIS 2250 (2d Cir. Feb. 11, 2005) (available here), the court simply remands one defendant's case in accord with Crosby, but then it affirms the sentence of another defendant who did not raise a Sixth Amendment claim. This case thus leads me to wonder about the appropriateness of affirming sentences imposed under (now inoperative) mandatory guidelines even when the defendant is appealing on grounds others than the Sixth Amendment.
From the Fourth Circuit, in US v. Washington, 2005 WL 326986 (4th Cir. Feb. 11, 2005) (available here), the court follows the circuit's prior work in Hughes to find plain error based on an obstruction of justice enhancement. Notably, the Washington court does not address the on-going inter-circuit split over application of the plain error standard (and the facts of Washington suggest the 2d Circuit's approach in Crosby and the 11th Circuit's approach in Rodriguez might have led to a different result). Also, the Washington court asserts that, even though the Sixth Amendment claims was not raised in the defendant's opening brief and such claims "are normally deemed to have been waived, the Booker principles apply in this proceeding because the Court specifically mandated that we 'must apply [Booker] . . . to all cases on direct review.'"
From the Eighth Circuit, in US v. Nolan, 2005 WL 323696 (8th Cir. Feb 11, 2005) (available here), the Court in a footnote rejects a Blakely/Booker claims and upholds judicial fact-finding concerning the nature of the defendant's prior convictions in an application of the Armed Career Criminal Act. Based on the Harris limit and Almendarez-Torres exception to Blakely/Booker, this ruling seems sound, but the case highlights the impact and import of these seemingly shaky precedents.
From the Ninth Circuit, in US v. Ruiz-Alonso, 2005 WL 326839 (9th Cir. Feb. 11, 2005) (available here), the court in a final paragraph ordering a Booker remand uses language which could suggest a remand standard even broader than the Ninth Circuit's discussion in Ameline. In Ruiz-Alonso, the government was appealing a downward departure, and the Ninth Circuit concluded: "Because we cannot say that the district judge would have imposed the same sentence in the absence of mandatory Guidelines and de novo review of downward departures, we vacate the sentence and remand for resentencing in a manner consistent with Booker."
From the Tenth Circuit, we get two notable Booker opinions, and, interestingly, the one to be published is the shorter seemingly less consequential one, US v. Lynch, 2005 WL 327710 (10th Cir. Feb. 11, 2005) (available here). In Lynch, the district court had "Blakely-ized" at sentencing, considering only the defendant's admitted drug quantities, and the government appealed. These facts brought the case directly in line with Fanfan, and the 10th Circuit followed the Supreme Court's lead by simply ordering resentencing under the new Booker rules.
More interesting, but left unpublished, is US v Garcia-Castillo, 2005 WL 327698 (10th Cir. Feb 11, 2005) (available here), which concerns Blakely's applicability to a restitution order. Though the Garcia-Castillo court ultimately rules that, for "any one of three independent reasons, we reject Garcia-Castillo’s Blakely/Booker argument," along the way the 10th Circuit covers a lot of important (and disputed) ground concerning the scope of Blakely, the nature of Blakely admissions, and the application of plain error.
WHEW! I am sure I have missed some nuances in these cases, and readers are highly encouraged to use the comments to amplify any and all important issues raised by these cases.
February 12, 2005 at 10:45 AM | Permalink
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My take on the Second Circuit's Konstantakakos decision was that it punished the appellant whose sentence was affirmed for what appears to have been poor advocacy by his appellate lawyer.
While the record isn't clear and there might well be a good explanation, it looks like that lawyer made two mistakes: he did not include a typical point in his brief joining all arguments of co-appellants and appears not to have submitted anything after Blakely to assert a sixth-amendment claim. It's hard to believe that an appellant in the Second Circuit would ever make a strategic decision not to seek a Blakely/Booker/Crosby-based remand but one can't really blame the court for not giving that relief sua sponte, when the appellant had not availed himself of several opportunities to ask for it.
On the other hand, considering the likelihood that this was simply the result of poor lawyering, it would have been nice if the court had reached out to the appellate lawyer to get a clear answer, instead of simply presuming that he was deliberately waiving his client's otherwise meritorious sixth-amendment claim.
Posted by: Alex E. | Feb 12, 2005 3:50:10 PM
Update: In checking the docket sheet, the case was argued on 1/25/05, almost two weeks after Booker was decided. Under those circumstances, one has to believe the panel asked counsel for his position and that he specifically waived any sixth-amendment claim. If that's true, it seems fair for the court to have respected that position by not remanding against counsel's wishes.
Posted by: Alex E. | Feb 12, 2005 4:05:36 PM