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August 15, 2005

Second Circuit ruling on harmless error

Today has been a bit of a manic Monday in the federal circuit courts.  I have seen noteworthy sentencing rulings from the 5th, 6th and 9th Circuits, in addition to the rulings from the 8th Circuit and 7th Circuit noted in prior posts.  And now from the Second Circuit comes US v. Lake, No. 04-3238 (2d Cir. Aug. 15, 2005) (available here), in which Judge Jon Newman (of Crosby fame) speaks to the application of harmless error in the review of preserved Booker claims.  Here is a snippet:

Once the Supreme Court fundamentally altered federal sentencing procedures by ruling in Booker that the Guidelines were no longer required to be applied, it became difficult for the Government to sustain its burden of proving that a Booker error was harmless.  Although some sentences imposed under the pre-Booker regime would not have been different had the sentences been imposed under the post-Booker regime, it will usually not be easy to divine with certainty that the sentencing judge would have imposed the same sentence.

The full opinion is only nine pages, though folks looking for a fuller summary can stop by this post at Appellate Law & Practice.

August 15, 2005 at 05:14 PM | Permalink


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