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May 10, 2005

10th Circuit joins appeal waiver bandwagon

Because the Tenth Circuit releases its opinions very late in the day, I missed last week that the court on Friday in US v. Green, No. 04-5105 (10th Cir. May 6, 2005) (available here) formally joined other circuits in enforcing a pre-Blakely appeal waiver despite the legal sea change brought by Blakely and BookerGreen is a thorough opinion on the appeal waiver issue (although, as detailed in commentary here and here, I have concerns about the result).  Green also discusses a court's limited authority to correct a sentence under Rule 35(a).  Here is the Green ruling's opening summary paragraph:

In this direct criminal appeal, we hold that the district court did not have jurisdiction under Fed. R. Crim. P. 35(a) to resentence Defendant more than seven days after the court orally imposed an earlier sentence.  We also conclude that Defendant's waiver of his appellate rights — made before the Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004) — is enforceable and bars our consideration of any claims he may assert under United States v. Booker, 125 S. Ct. 738 (2005).

May 10, 2005 at 07:54 AM | Permalink


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Say Professor,
Did you catch the "Homer Simpson" moment in the 11th Circuit's Green appeal. The Defendant complained about his sentence, defense counsel moved to withdraw via Anders, and the Circuit increased the Defendant's sentence from 41 months to the original 84 month sentence due to the district court's violation of time limits. Du'h! Sometimes you have to know when to leave well enough alone. I think that is a message within Judge Posner's opinion in Goldberg.

Posted by: doug | May 10, 2005 1:22:16 PM

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