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June 7, 2005

5th Circuit discusses Booker resentencings

On Monday, the Fifth Circuit had an opportunity in US v. Scroggins, No. 03-30481 (5th Cir. June 6, 2005) (available here) to discuss the nature of resentencings under Booker.  Though the case has a complicated history and though the Fifth Circuit's opinion is somewhat opaque, Scroggins is notable for its discussion of a number of important Booker resentencing issues. 

First, Scroggins rejects the defendant's contention that due process/ex post facto principles restrict application of the Booker remedy and thereby requires that resentencings be based only on Blakely-compliant facts.  But then Scroggins also rejects the prosecution's contention that certain guideline enhancements that had been affirmed on appeal pre-Booker could not now be reconsidered by the district court.  Here are selections from Scroggins's account of what should now transpire at resentencing:

The district court may, should it deem it appropriate, reconsider its determinations that Scroggins was a leader or organizer and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determination under an advisory, non-mandatory, guidelines system....

We hold that, under the particular circumstances of this case, the district court may also, in its discretion, hear and consider evidence as to Scroggins's role in the offense under section 3B1.1 of the Guidelines and whether he obstructed justice under section 3C1.1 of the Guidelines.  The court may also hear evidence bearing on whether or not — notwithstanding that the Guidelines (and pertinent Sentencing Commission policy statements) must be considered and taken into account — a non-guideline sentence would be more appropriate in light of the other factors and considerations set out in Justice Breyer's Booker opinion.

June 7, 2005 at 03:37 AM | Permalink

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Comments

The Fifth Circuit appears to dismiss the due process/ex post facto objection Scroggins raised simply because recognizing this problem would get in the way of applying Justice Breyer's remedial ruling to every case pending on direct appeal.

How does this reasoning respond to -- let alone cure -- the stark problem that Breyer's Booker remedy effectively increased the "statutory maximum" (to use Blakely terminology) applicable to Scroggins's crime above what it was on the date the alleged criminal acts occurred?

Surely Justice Breyer and his remedial majority did not intend that their unexpected remedy would be applied to any case in ways that violated other constitutional limits.

Posted by: Viviera | Jun 7, 2005 1:38:19 PM

greetings! I am a pro-se litigant, now serving the remainder of my 24 month supervised release probation here in the So. Dist. of Florida. Yet the sentencing court (USDC-TXED-BEAUMONT) now has had my Section 2255 before it since April, 2004; furthermore, the AUSA has responded last July, 2004; furthermore, I have submitted an AMENDED 2255 regarding BOOKER/FANFAN 543US___ retroactivity arguments which were preserved below in both the Trial [ 1:00CR135(2) ] and Appellate Phases [ 02-41254 5CA -denied ]. Recently, I submitted a NOTICE TO THE COURT in hope that a resolution might be forthcoming. The remainder of the probation ends 9/01/06; and, the remedy, if successful, would reduce or terminate the current term of imprisonment immediately. I seek pro-bono representation in the Eastern District of Texas(Beaumont). Half my supervise release probation ends this September 1st; I will also approach the court with a letter/motion to terminate the probation based upon exemplory conduct, full employment and the Guidelines statute which offers this opportunity. I would also like to seek representation in composing such a letter/motion in electronic filing requirements. So far the court has accepted all motions , either handwritten or typed for over 4 years; but, since this is an important moment and the legal format is not known to me; I anxiously await your reply. 954-696-1828

Posted by: Richard | Jul 5, 2005 5:23:23 PM

greetings! I am a pro-se litigant, now serving the remainder of my 24 month supervised release probation here in the So. Dist. of Florida. Yet the sentencing court (USDC-TXED-BEAUMONT) now has had my Section 2255 before it since April, 2004; furthermore, the AUSA has responded last July, 2004; furthermore, I have submitted an AMENDED 2255 regarding BOOKER/FANFAN 543US___ retroactivity arguments which were preserved below in both the Trial [ 1:00CR135(2) ] and Appellate Phases [ 02-41254 5CA -denied ]. Recently, I submitted a NOTICE TO THE COURT in hope that a resolution might be forthcoming. The remainder of the probation ends 9/01/06; and, the remedy, if successful, would reduce or terminate the current term of imprisonment immediately. I seek pro-bono representation in the Eastern District of Texas(Beaumont). Half my supervise release probation ends this September 1st; I will also approach the court with a letter/motion to terminate the probation based upon exemplory conduct, full employment and the Guidelines statute which offers this opportunity. I would also like to seek representation in composing such a letter/motion in electronic filing requirements. So far the court has accepted all motions , either handwritten or typed for over 4 years; but, since this is an important moment and the legal format is not known to me; I anxiously await your reply. 954-696-1828

Posted by: Richard | Jul 5, 2005 5:24:12 PM

greetings! I am a pro-se litigant, now serving the remainder of my 24 month supervised release probation here in the So. Dist. of Florida. Yet the sentencing court (USDC-TXED-BEAUMONT) now has had my Section 2255 before it since April, 2004; furthermore, the AUSA has responded last July, 2004; furthermore, I have submitted an AMENDED 2255 regarding BOOKER/FANFAN 543US___ retroactivity arguments which were preserved below in both the Trial [ 1:00CR135(2) ] and Appellate Phases [ 02-41254 5CA -denied ]. Recently, I submitted a NOTICE TO THE COURT in hope that a resolution might be forthcoming. The remainder of the probation ends 9/01/06; and, the remedy, if successful, would reduce or terminate the current term of imprisonment immediately. I seek pro-bono representation in the Eastern District of Texas(Beaumont). Half my supervise release probation ends this September 1st; I will also approach the court with a letter/motion to terminate the probation based upon exemplory conduct, full employment and the Guidelines statute which offers this opportunity. I would also like to seek representation in composing such a letter/motion in electronic filing requirements. So far the court has accepted all motions , either handwritten or typed for over 4 years; but, since this is an important moment and the legal format is not known to me; I anxiously await your reply. 954-696-1828

Posted by: Richard | Jul 5, 2005 5:25:33 PM

greetings! I am a pro-se litigant, now serving the remainder of my 24 month supervised release probation here in the So. Dist. of Florida. Yet the sentencing court (USDC-TXED-BEAUMONT) now has had my Section 2255 before it since April, 2004; furthermore, the AUSA has responded last July, 2004; furthermore, I have submitted an AMENDED 2255 regarding BOOKER/FANFAN 543US___ retroactivity arguments which were preserved below in both the Trial [ 1:00CR135(2) ] and Appellate Phases [ 02-41254 5CA -denied ]. Recently, I submitted a NOTICE TO THE COURT in hope that a resolution might be forthcoming. The remainder of the probation ends 9/01/06; and, the remedy, if successful, would reduce or terminate the current term of imprisonment immediately. I seek pro-bono representation in the Eastern District of Texas(Beaumont). Half my supervise release probation ends this September 1st; I will also approach the court with a letter/motion to terminate the probation based upon exemplory conduct, full employment and the Guidelines statute which offers this opportunity. I would also like to seek representation in composing such a letter/motion in electronic filing requirements. So far the court has accepted all motions , either handwritten or typed for over 4 years; but, since this is an important moment and the legal format is not known to me; I anxiously await your reply. 954-696-1828

Posted by: Richard | Jul 5, 2005 5:27:00 PM

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