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March 2, 2006

Ninth Circuit on the minutiae of guideline calculations post-Booker

The Ninth Circuit today issues a lengthy opinion in US v. Jennings, No. 04-10343 (9th Cir. Mar. 2, 2006) (available here) to address this interesting bit of guideline minutiae: "Whether a defendant who, in the course of a bank robbery, states that he has a gun but makes no reference to his willingness to use it is subject to a two-level sentencing enhancement for a 'threat of death' pursuant to [USSG] § 2B3.1(b)(2)(F)." 

Though much of the Jennings opinion may be of great concern only to bank robbers, the court drops a notable footnote about the importance of precise guidelines calculations after Booker.  Here is part of that footnote:

There may be little point in requiring district courts to engage in the purely academic exercise of resolving complicated factual questions in order to delineate an exact Guidelines range if the court has already settled on a reasonable sentence in light of the factors set forth in 18 U.S.C. § 3553(a).  Although the Second Circuit has determined that, in such cases, a precise calculation is not always necessary, see United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), the Ninth Circuit has not yet reached this issue. See Cantrell, 2006 WL 73483, at *6 n.3 (noting but not deciding same issue).  Given that the threat-of-death enhancement ordinarily does not present a difficult factual issue — and that here, the defendant has conceded that the statement at issue was in fact made — this case is not a proper vehicle to consider the question.  Accordingly, as we did in Cantrell, we leave that question for another day.

March 2, 2006 at 01:25 PM | Permalink


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