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March 28, 2005

Eighth Circuit re-issues Mooney

Back in those hazy days of the summer of Blakely, the Eighth Circuit used the case of US v. Mooney to first address Blakely's applicability to the federal system (see discussion here).  That decision was vacated by the full Court's decision to rehear Mooney en banc (details here), though I believe that en banc rehearing never happened because of the coming Booker decision.

Today, with Booker now defining the new federal sentencing universe, the Eighth Circuit re-issued its Mooney opinion, which can be accessed here, and the new Mooney includes some interesting discussion of loss calculations and Booker issues.  Here's a notable passage (with cites omitted), which manages to duck the plain error issue (since it is still undecided in the Eighth Circuit and being considered en banc):

Sentencing remains a court function under Booker.  Judicial fact finding is permitted as long as it is understood that the guidelines are not mandatory. Although the court must consult the guidelines, it is not obligated to sentence according to them, and a sentence imposed in the exercise of discretion will be upheld if reasonable. Reasonableness may be demonstrated by a court's consideration of the guidelines, relevant conduct, and statutory sentencing factors.

Under the remedial approach set out by Justice Breyer for cases in which there is an apparent Sixth Amendment violation, the first question in applying "ordinary prudential doctrines" is whether the defendant raised the issue below.  It is not clear from the record before us whether Mooney asked the district court at trial to submit the issue of gain to the jury or whether he raised a constitutional issue at his sentencing. We have reviewed the record and have not found any indication that such an argument was made, but the district court is in a better position to determine what happened at trial. Accordingly, Mooney's sentence should be remanded to the district court for further proceedings in light of Booker.

In summary, we conclude that Mooney is not entitled to prevail on any of his arguments for judgment of acquittal or new trial and we affirm his conviction, but we remand his sentence to the district court for further proceedings consistent with Booker and with the power to modify the sentence if warranted.

March 28, 2005 at 01:49 PM | Permalink

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