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March 16, 2005

Booker remand in the First Circuit

As noted by Appellate Law & Practice here, the First Circuit today in US v. MacKinnon, No. 03-2219 (1st Cir. Mar. 16, 2005) (available here) remands for re-sentencing on Booker grounds, applying the plain error standards that the circuit established in its Antonakopoulos decision (discussed here) which requires the defendant to show he was prejudiced by the application of mandatory guidelines.  (Background on the circuits approaches to plain error is here.)

The defendant in MacKinnon was able to make such a showing based in part on this statement by the sentencing judge at the defendant's pre-Blakely sentencing:

"I have worked hard on the memorandum and tried to figure out some way under the law in which the sentence could be reduced. I can't do it. And although I totally disagree with our government's policies at this stage concerning sentencing, I am bound to obey my oath and to do this according to principle, knowing all the time that this is an unjust, excessive and obscene sentence."

March 16, 2005 at 02:56 PM | Permalink

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If United States v. MacKinnon, No. 03-2219 (1st Cir. March 16, 2005) was not remanded for resentencing in light of Booker and the strict standard set up by the First Circuit in United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365 (1st Cir. Feb.... [Read More]

Tracked on Mar 17, 2005 1:12:44 AM

Comments

Professor: Just got word from the Fifth Circuit that one of my cases, US v. Murillo-Reza, has been remanded for resentencing based on Booker. This was the alien smuggling case written up in the Texas Lawyer; the one in which the opinion was released vacating the sentence on January 12th, then withdrawn. The Government agreed that resentencing was in order, so we filed a joint motion for remand. The resentencing should be very interesting indeed. Adrienne Urrutia, Attorney, San Antonio, Texas.

Posted by: Adrienne Urrutia | Mar 17, 2005 10:59:45 AM

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