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June 2, 2005

Rough day for Booker defendants in the Circuits

I am now in San Antonio to participate in the on-going National Seminar for Federal Defenders.  Getting in the local spirit, I must note that, though Wednesday was a good day for the Spurs, it was not a good day for Booker defendants in the circuits.  The Ninth Circuit's en banc decision in Ameline (basics here, commentary here), though not giving the government its requested relief, still makes life more difficult for defendants asserting plain error than did the original Ameline panel decision.  And, the government scored notable complete victories in Booker-related decisions from other many circuits on Wednesday:

From the Sixth Circuit, in US v. Luebbert, No. 03-5598 (6th Cir. June 1, 2005) (available here), the court in a short (and split) decision in a GVRed case from the Supreme Court refused to consider a Booker claim due to an appeal waiver.  Judge Moore dissented because she believed "that Luebbert's plea agreement [did] not unambiguously waive Luebbert's right to raise a Sixth Amendment challenge to his sentence on the basis of United States v. Booker."

From the Seventh Circuit, in US v. Cieslowski, No. 03-2890 (7th Cir. June 1, 2005) (accessible here), the court in a lengthy opinion affirmed a lengthy sentence over seemingly sound claims of ineffective assistance.  Along the way, the court provided an interesting discussion of the status of so-called (C) pleas after Booker — for non-FSG-geeks, those are pleas in which the parties agree to a particular sentence pursuant to Fed. R. Crim. P. 11(c)(1)(C).

From the Eighth Circuit, Wednesday marked the third consecutive work day in which the court issued roughly a half-dozen sentencing opinions which, more often than not, found defendants' Booker claims unavailing.

From the Tenth Circuit, in US v. Dalton, No. 04-7043 (10th Cir. June 1, 2005) (available here), the court reiterated its view that preponderance fact-finding is all the guidelines require, and upheld a guideline calculation of drug quantities based principally on "testimony [that] was vague and contradictory at times."  The court also rejected a Booker plain error claim based on the fourth prong of the plain error test.

June 2, 2005 at 03:07 AM | Permalink


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