January 4, 2006
Extended 11th Circuit discussion of prior conviction exception
Today the Eleventh Circuit in US v. Gibson, No. 04-14776 (11th Cir. Jan. 4, 2005) (available here), issued a long opinion, per Judge Tjoflat, primarily discussing (1) the application of the "prior conviction" exception to the Apprendi-Blakely rule, and (2) departures from the career offender guidelines. Here is a portion of the opinion's opening paragraph:
The district court concluded that under Blakely v. Washington, 542 U.S. 296 (2004), it could not classify Gibson as a career offender because the Government did not prove to a jury the nature of Gibson's prior convictions (i.e., that those prior convictions were felonies involving controlled substances) or the fact that Gibson was at least 18 years old at the time he committed the offense in this case. We conclude that the Supreme Court's decision in Blakely, and its subsequent decision in United States v. Booker, 543 U.S. 220 (2005), did not prevent the district court from considering Gibson's prior convictions, determining his age at the time he committed the instant offense, and designating him a career offender.
A quick skim of the Gibson opinion suggests that there are no dramatic new declarations in its 42 pages. Nevertheless, the Gibson opinion provides a very clear and useful review of the state of the law in the 11th Circuit. Also, recalling the Ninth Circuit's recent emphasis in Kortgaard that the "prior conviction" exception is "narrow" and the Seventh Circuit's recent assertions that Booker rendered obsolete the concept of departures, the Gibson opinion reminded me how differently the different circuit have been reconstructing the post-Booker world.
January 4, 2006 at 12:36 PM | Permalink
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I have to file to 11th district to appeal-Is there an easier key-or critical information tucked into language that I would need to know? I am prose-a 51 year old mom made homeless on Christmas by Geauga Domestic court. I am not bad-something is wrong-the transcript is falsified, Orders ignored and changed. no suuport over a year, adultery, fincancial miscondoct, please help me. I have to file by tomorrow & do not know how-I am a 51 year old mom. PS. Son OSU alum. 2005-landed marketing job in St.Petersburg, Russia -web site OSKO HAUS- researching 5mil+ homes mkt.in India,China,US. However, I have no money-I gave it all to my kids; the other is a Jr. at allegheny c. thank you so very much-I lost my children for no reason-trying to buy and drink beer-age17 & 18. Geauga took my house, my kids, my life-HELP!
Posted by: Teri Nemeth | Apr 17, 2007 3:27:33 AM
Posted by: | Oct 14, 2008 10:20:35 PM