The First Circuit on prior convictions and plain error

The First Circuit yesterday continued its traditional of saying a lot about Blakely — and rejecting Blakely claims — without making a direct ruling on Blakely's applicability to the federal guidelines (previous examples are here and here and here). In US v. Cordoza-Estrada, 2004 WL 2179594(1st Cir. Sept. 29, 2004), the Court rejected a Blakely claim relying on both the prior conviction exception and on "plain error" doctrine:

Blakely did not disturb the distinction between "the fact of a prior conviction" and other facts that "increase the penalty for a crime beyond a prescribed maximum." Blakely, 124 S.Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge's consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction....

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was "plain."...

In determining whether the error was plain, the Supreme Court has explained: "Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. [Citing Booker, Hammoud, and Koch]. Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal.

Because the trial judge's sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.