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January 15, 2005

Booker basics and more commentary

Not surprisingly, everyone is puzzled trying to figure out Booker.  As I have suggest in various ways, only through a lot of litigation will we even start to get a sense of what the decision "really" means (which is why I am encouraging those in the federal system to report federal Booker rulings here, and also state actors to report any post-Booker state Blakely developments here).

Helpfully, there are already a number of sources and resources trying to explain Booker basics.  FAMM has a helpful Understanding Booker and Fanfan, and White Collar Crime Prof Blog has posted here Booker wisdom of always wise lawyer Peter Goldberger, and the blog Right Side of the Rainbow has produced A Layman's Guide to Understanding Booker

In addition, though written for a lawyery audience, another always wise lawyer, Mark Allenbaugh, has this terrific Findlaw commentary on Booker.  Similarly, this Salon piece on Booker provides a sophisticated take on the basics.

Also, recall that I tried to summarize Booker's essence in this post, and I have collected a wealth of links to my commentary and others' here and here.  And Judge Cassell's Wilson ruling (about which I will have a lot more commentary later today) provides one district judge's view of the post-Booker world.

January 15, 2005 at 08:48 AM | Permalink


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After reading all of your linked commentary (which is facsinating), I have one question which remains unanswered. Can a sentencing Judge consider PSI recommended enhancements even though not BRD/admitted/pled when considering the Guideline range, or is the sentencing Judge required to impanel a jury before sentencing (as in Booker) and resolve all upward departure issues BRD. Is a pre-sentence motion to excise PSI enhancements appropriate or should the burden lie with the Government to move for a sentencing jury?

Posted by: Bob | Jan 15, 2005 10:19:55 AM


I am a defendant, convicted pre-Blakely and (not)sentenced post-Booker, with 4 classic Blakely type upward departures and have waited 9 months since conviction for sentencing. The upward departures add 4-5 years to the sentence and if the upward departures are thrown out, I'm looking at 0-6 months with a shot at probation! My question is how can the court order a jury to re-sit for re-sentencing after a year being dismissed? Or how can the court order a new jury to hear evidence for sentencing without double jeopardy implications? Good questions. For those of us who are on the straddle, the judge will have to simply throw out the enhancements and forget about reconvening tainted juries...and just judge on what we were convicted of by the jury in the first place. Since Blakely/Booker, the government is just out of luck to add unfair enhancements after the fact of trial.

Posted by: Fred | Jan 15, 2005 2:03:09 PM


I don't think the answer to your analysis is that simple. First, were any of the PSI enhancements (relevent factors) found by the jury BRD? Second, look at Booker and you will see that the case was remanded for resentencing. There is specific language in the opinion which requires the sentencing court to convene a jury or to sentence Booker in accordance with the Breyer remedy, whatever that means. I think the issue is whether the guidelines are dead or are they alive in the mind of the sentencing court (according to Wilson they live provided the 6th Amendment rights of the Defendant is assured). In your case however, if the relevant factors have not been admitte, pled, or pled yet not found BRD by the jury, any sentence which considers the enhancements not found BRD would be unreasonable. A Judge in the SD of Florida came to this conclusion post-Blakely, pre-Booker.

Posted by: Bob | Jan 15, 2005 2:17:20 PM

It's me again.

I posted a comment a couple of days ago, but I feel I might have inadvertently ommitted some valuable information regarding the case in question.

Here are the facts in their entirety.

The defendant was sentenced in 2001.

The Plea agreement's sentencing guideline recommendations specifically spelled out the defendant was to receive a 34 Base Level Offense, with a three-point reduction for acceptance of responsibility. The Plea also cited 2K2.1 (a) (5) and 3d1 and 5G1.2, which I assume means the gun charges were grouped and would not result in additional points in the Base Level Offense. Therefore, the Plea Agreement resulted in a total of a 31 Base Level.

The defendant's PSI cited the Base Level of 34 (2D1.1), a three-point reduction for Acceptance of Responsibility, AND A TWO-POINT ENHANCEMENT FOR A GUN per 2D1.1 (b) (1). Therefore, the PSI resulted in a total of 33 for the offense.

The defendant also received a 5K (downward departure), which resulted in a sentence of 67 months (which would be the bottom of the range for a 33 offense level).

The sentence was based on the PSI two-point enhancement for the gun, which also resulted in the defendant being ineligible for a year off for attending "drug school", and ineligible for a two-point reduction of the safety valve.

Although the Plea agreement does not mention the gun enhancement or the fact the defendant would not receive the safety valve reduction of two points, the Plea Agreement was accompanied by a signed letter from the federal prosecutor that said "there will be no ehancement for the gun" and "the defendant may be eligible for a two-point reduction for safety valbe consideration."

The defendant is considering requesting resentencing to ask for the removal of the two-point gun enhancement and receipt of the two-point safety valve reduction. This would result in his Base Level Offence being 29 and a reduction of approximately 23 months from his original sentence.

However, the defendant is concerned the 5K he received could be taken away if he goes back for resentencing.

Can a 5K motion be taken away from a defendant if he goes back for resentencing?

Can extra time be added onto the original sentence as a result of requesting resentencing?

Given the information above, do you believe the defendant has a chance in sentence reduction since the judge used specific characteristics from the PSI (gun ehancement) that was not admited to in the Plea Agreement?

Eagerly awaiting.

Posted by: Becky | Jan 16, 2005 5:16:44 PM

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