September 6, 2005
A big circuit day for criminal history
Perhaps unsurprisingly, the federal circuit courts have returned from a long weekend by handing down lots of new opinions. And, of course, sentencing and Booker issues are in the mix. Though the 8th Circuit continues its daily coverage of a broad range of interesting sentencing issues (as evidenced on this official opinion page), criminal history issues are front-and-center in a number of circuit rulings today. Lacking time to consume all the action, I will just note and link:
- From the Fourth Circuit, check out US v. Thompson, No. 04-4678 (4th Cir. Sept. 6, 2005) (available here) and US v. Amaya-Prtillo, No. 04-4672 (4th Cir. Sept. 6, 2005) (available here).
- From the Eighth Circuit, check out US v. Smith, No. 04-3747 (8th Cir. Sept. 6, 2005) (available here).
- From the Ninth Circuit, check out US v. Kelly, No. 04-30074 (9th Cir. Sept. 6, 2005) (available here).
Among this group, Thompson may be the most interesting read because of the lengthy dissent by Fourth Circuit Chief Judge Wilkins. Readers are highlight encouraged to note any important needles in today's criminal history haystack.
September 6, 2005 at 05:17 PM | Permalink
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Judge Wilkins' dissent is a great example of the FIFTH Amendment possibilities that must be resolved in the wake of Apprendi, Blakely, and Booker. He notes how the majority of the Fourth Circuit panel does not even discuss the Fifth Amendment. Because Blakely and Apprendi did not involve the Fifth Amendment Grand Jury Clause (no incorporation), and SCOTUS did not take a Grand Jury Clause issue in Booker/Fanfan, the Fifth Amendment implications of enhanced sentencing has yet to be resolved. In many ways, the Fifth Amendment provides the opportunity for even stricter regulation of a prosecution-centered sentencing structure than the Sixth Amendment, and this issue has not yet been addressed, much less decided, by the Supreme Court. Judge Wilkins' opinion is a must-read, and practitioners and academics should continue to insist that the Fifth Amendment implications of the A/B/B line of cases be worked out.
Posted by: Mark | Sep 6, 2005 6:00:15 PM
The Thompson case is a good case for the ensuring that defendant's receive the proper sentence and avoiding the "legal fictions" of avoiding proper base offense level enhancements.
It holds, et al., that in determining factual issues such as whether the prior crimes occurred on separate dates, a court can rely on the PSR.
"The trial judge was entitled to rely upon the PSR because it bears the earmarks of derivation from Shepard-approved sources such as the indictments and statecourt judgments from his prior convictions, and, moreover, Thompson never raised the slightest objection either to the propriety of its source material or to its accuracy." Id.
Posted by: Deuce | Sep 7, 2005 11:42:03 AM
I would like to get a straight answer since I
have not been able to get one from the attorney
I hired for my son that is charging our family
12000.00. My son who just turned 18 in Mar 2006 has no criminal background whatsover woke up one morning with the bishop's son and the two of them
which the other young man does not have a history
decided to rob our local federal credit union with a gun. No one was hurt thank god. My son and the other young man who we believe both were pressured by some ugle other guys any way my son lawyer claims my son no criminal history means nothing to any judge and has gotten him a plea bargain with the feds and tells me the federal sentencing locks him in to a set amount of time that takes no consideration for his prior history
Is this true and how about first time offender policy in some cases where once they get out their felony is wipe clean. Does he have a chance of this happening in the state of Georgia. Then get this while my son is accepting a plea bargain that his attorney told him to take the state district attorney is trying to charge him for pieces surrounding the same case. Double jeopardy maybe. Please advise. Do I need to notify the justice department. (706) 955-5587
Posted by: michelle S. vann | Oct 8, 2006 6:00:22 AM