May 20, 2005
Late-night blog roaming for sentencing items
A late-night roam around the blogsphere has unearthed these notable posts on sentencing topics:
- TalkLeft in this post details that news of the extreme drug sentencing provisions in HR 1528 (some background here) has caught the attention of an editorial writer in Sydney, Australia, who comments that the bill "represents the point where the war on drugs has lost its mind, its pious extremism blind to the damage it will do to a society that respects its neighbours."
- On the topic of drug sentencing, Gideon at The Connecticut Law Blog has news in this post that the state's bill to equalize sentences for crack and powdered cocaine is awaiting Governor Rell's signature. I previously discussed this bill in this post touting state insights on criminal justice matters. Gideon also explores in this post the status of mandatory minimum sentences under state law.
- Tom Freeland at Appellate Law & Policy notes a plain error sentencing reversal from the Fifth Circuit in this post, and Happy Fun Lawyer at AL&P has this post about a notable Second Circuit AEDPA ruling (which confirms my sense of the need for a distinct AEDPA blog).
May 20, 2005 at 01:32 AM | Permalink
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Just a note on United States v. Garza-Lopez, No. 03-41750 (5th Cir. May 19, 2005). This is not a case of a Booker remand under plain error. What is important about this case is the Fifth Circuit stating that the sentencing court could not simply rely on a statement in the PSR to determine whether the defendant committed a "drug trafficking" offense under 8 U.S.C. 1326 when there is a question of whether the statute, in conjunction with the defendant's "activities," qualified as drug trafficking. See also United States v. Gutierrez-Ramirez, No. 03-41742 (5th Cir. April, 5, 2005). The sentencing court is limited to the statutory definition, the charging papers, and the jury instructions. It is no secret that the Fifth Circuit is not very "defendant friendly," but this case is an example of the Fifth Circuit doing some excellent work in the area of determining whether a defendant's previous offense qualifies as a crime of violence or drug trafficking offense and the limitations of what to examine to make that determination. Correspondingly, this and other cases that the Fifth Circuit has written in this area give decent guidance on Shepard and Taylor. In sum, a creative defense attorney can use this case to assist clients dealing with issues related to Almendarez-Torres.
P.S. This is also another good example of cutting edge appellate work from the Office of the Federal Public Defender, Southern District of Texas. Lastly, an interesting bit of trivia, who was the reversed district judge? It appears that it was none other than the Chair of the Sentencing Commission . . . . We all make mistakes.
Posted by: doug | May 20, 2005 9:42:53 AM