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January 28, 2005

More on Booker from the 8th Circuit

The Eighth Circuit won the award last week through its ruling in Coffey (details here) for being the first to circuit court to issue a consequential Booker ruling.  That court puts forth its second notable Booker decision today with US v. Parsons, No. 04-2246 (8th Cir. Jan. 28, 2005) (available here).

In Parsons, the court rejects an effort to seek resentencing in a plea case which included admissions of certain guideline facts.  The defendant after Blakely claimed that he "would never have admitted to the amount of loss attributable to his conduct as stated in his plea agreement if he had known that these factors had to be proven beyond a reasonable doubt."  Here's the court's analysis:

Because Parsons admitted as part of his plea agreement that the amount of loss attributable to him was between $1.5 million and $2.5 million, requiring a 12-level enhancement, that enhancement of his sentence does not violate United States v. Booker, Nos. 04-104/105, 2005 WL 50108 (U.S. Jan. 12, 2005)....

Finally, there would be no merit to an argument that Parsons is entitled to resentencing under advisory Guidelines in light of Booker.  He expressly agreed as part of his plea agreement that he would be sentenced under the Guidelines, that his base offense level would be 6, that he would receive the 12-level amount-of-loss enhancement, that he would receive a 2-level enhancement for more than minimal planning, and that his resulting Guidelines imprisonment range could be as high as 30-37 months. The district court applied the agreed-upon range of 30-37 months in sentencing Parsons to 30 months in prison.

January 28, 2005 at 12:06 PM | Permalink


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Did Parsons "stipulate" to the alleged loss amount? Or did he "agree to recommend" a guideline based enhancement? Seems to me there ought to be a difference. Merely recommending a guideline sentence (that is now constitutionally challenged) is one thing but actually "admitting" or "stipulating" to such a loss amount (or any other enhancement) is another.

Posted by: bill | Jan 28, 2005 2:35:41 PM

Yes there should be a difference as far as I'm concerned.

Posted by: joe | Jan 28, 2005 3:42:46 PM

More interesting to me is the court's conclusion that Parsons isn't entitled to resentencing post-Booker because "he expressly agreed as part of his plea agreement that he would be sentenced under the Guidelines." But his plea was entered pre-Booker, while the Guidelines were still mandatory, so how could he have done otherwise (aside from not entering into a plea agreement)?

Posted by: JDB | Jan 28, 2005 4:13:46 PM

He doesn't get a re-sentencing because he stipulated to certain Guidelines enhancements? So what, the Court rejected the gov'ts claim that some defendants could be sentenced pursuant to the Guidelines because their ranges could be applied w/o violence to the 6th Amendment. If everybody cant be sentenced under mandatory Guidelines then noone can. See Booker, 2005 WL 50108, at *27.

Posted by: R/W | Jan 28, 2005 11:22:33 PM

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