April 29, 2005
8th Circuit decides Pirani plain error en banc
I just got the word that late today the Eighth Circuit released its long-awaited plain error decision in US v. Pirani, No. 03-2871 (8th Cir. Apr. 29, 2005) (available here). I suppose I should be thankful it is only 36 pages, and I am thankful the 8th Circuit's website has this summary:
Applying Booker to a sentencing error which defendant failed to preserve in the district court, the court en banc follows the decisions of the First, Fourth, Fifth, and Eleventh Circuits in holding that a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice under controlling Supreme Court precedents, that is, a "reasonable probability" that the district court would have imposed a more favorable sentence under the advisory guidelines regime mandated under Booker; as defendant failed to meet that burden, his sentence is affirmed; challenges to cross-examination of defense witness rejected; district court did not abuse its discretion in admitting a tape-recording. Judge Heaney, dissenting. Judge Morris S. Arnold, with whom Judge Smith joins, dissenting. Judge Bye, concurring in part and dissenting in part. [PUBLISHED] [Opinion of the Court En Banc. Loken, Chief Judge, Author]
April 29, 2005 at 04:58 PM | Permalink
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I appreciate Judge Bye's comment in his dissenting opinion,
The majority now sets out to punish defendants for
failing to burden the court with objections deemed frivolous only a matter of months
ago. “Frankly, ‘it seems unfair to fault [the defendant] for failing to raise at
[sentencing] an objection based upon a rule that was not announced until after the
[sentencing] was concluded.’” United States v. Serrano-Beauvaix, 400 F.3d 50, 60
(1st Cir. 2005) (Lipez, J., concurring) (quoting United States v. Barone, 114 F.3d
1284, 1294 (1st Cir. 1997).
Posted by: Mark M. | May 1, 2005 5:52:29 PM
I am a paralawyer (a lot more than a paralegal and a little less than a lawyer) and former federal prisoner presently on parole (old law).
I am assisting a one-woman post-conviction relief
business in drafting post-convicition motions for federal (and few N.Y. State) prisoners seeking post-conviction relief.
I am also pursuing Supreme Court review of a Privacy action and have prevailed in three prior federal civil actions in the E.D.N.Y., see, e.g. King v. Simpson, 189 F.3d 284 (2d Cir.1999) I deeply appreciate your site and the information you provide as such reduces the amount of time required to conduct research. (I don't yet have access to WestLaw regularly to so do.
Again, thank you very much!
Eugene T. King
Posted by: Eugene T. King | May 9, 2005 5:36:35 PM
I am the wife of an inmate incarcerated nin FCI Mckean. He has been incarcerated for 15 years already, on a 25 year sentence for bank robbery. Is there a possibility for post-conviction relief or any type of relief for him. I read these comments daily and sometimes my hopes are up only to get dashed. I pray that some type of relief come to all that is worty of release. It is really sad that they keep them incarcerated until they are unemployable and release them into society with stipulations of seeking work to pay fines and/or restitution. Who will employ them at the age of 60 and beyond?
Posted by: Nurah Muhammad | Jun 3, 2005 8:57:33 PM
I read your blog in regards to the assistancee you provide to the one women post conviction relief business. I have a similar business here in Mississippi where I perform post conviction relief services to incarcerated persons and others who seek out the clinic's assistance. We have been having a few problems with the local bar since our business here takes a cut out of the local attorneys pocket in Mississippi and also exposes the problems with the system. They constantly use the self serving statute which has been dictated to prevent paralegal professionals from operating without the oversight of an attorney. See Miss. Code Ann. 73-3-55. We are looking for an approach to change the law or bring about a change such as the California statutes which allows paralegals function independently as doucment preparers and detainer persons. The state legislatures here, which are majority attorneys, will not entertain the idea of a bill to change the law. I am considering a federal court action but have not yet figured out the correct approach. Such an action may focus just enough attention on the matter to cause a change. More and more states are allowing paraprofessionals to function independently.
If you have any ideas get back with me. You can find my web site at www.ppslegalresearch.com.
Robert E. Tubwell
Posted by: Robert Tubwell | Mar 17, 2007 1:18:06 AM
I did not recieve your e-mail message.
Posted by: James D.Fletcher | Nov 20, 2007 6:30:59 PM