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February 4, 2005

The 10th Circuit speaks on harmless error!

With thanks to Howard Bashman of How Appealing for sending along the case, late tonight the 10th Circuit posted its first Booker ruling, US v. Labastida-Segura, No. 04-1311 (10th CIr. Feb. 4, 2005) (available here). Marking a sharp contrast from the 11th Circuit's plain error work in Rodriguez (which I am still thinking through), the 10th Circuit in Labastida-Segura is seeing the world through a more defense-oriented view:

We must apply the remedial holding of Booker to Mr. Labastida-Segura's direct appeal even though his sentence does not involve a Sixth Amendment violation. The [Supreme] Court has indicated that harmless error may be considered in such cases (thereby obviating the need for resentencing).  Fed. R. Crim. P. 52(a) provides that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."  In the context of a misapplication of the guidelines under 18 U.S.C. § 3742(f)(1), the Supreme Court held that "once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed."  Williams v. United States, 503 U.S. 193, 203 (1992) (citing Fed. R. Crim. P. 52(a)); see also 28 U.S.C. § 2111.

The district court plainly sentenced Mr. Labastida-Segura under the Sentencing Guidelines viewing them as mandatory. Although the Supreme Court indicated that not every guideline sentence contains Sixth Amendment error, and not every appeal requires resentencing, Booker, 2005 WL 50108, at *29, in this case (where the error was properly preserved) we cannot conclude that the error is harmless.  See United States v. Urbanek, 930 F.2d 1512, 1515-16 (10th Cir. 1991) (where court did not say whether the sentence would be the same with or without improper adjustment, remand was required).  Here, where it was already at the bottom of the guidelines range, to say that the district court would have imposed the same sentence given the new legal landscape (even after consulting the Sentencing Guidelines in an advisory capacity) places us in the zone of speculation and conjecture: we simply do not know what the district court would have done after hearing from the parties. Though an appellate court may judge whether a district court exercised its discretion (and whether it abused that discretion), it cannot exercise the district court's discretion.  See Martinez v. Potter, 347 F.3d 1208, 1211-12 (10th Cir. 2003).


February 4, 2005 at 11:59 PM | Permalink


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The regressive Judge Cassell must be grinding his teeth knowing that he missed being in the 11th Circuit by one measly digit. Can an appellate renunciation--hopefully a humiliating and demeaning one to drive the final nail in a shrinking reputation--of his cruel and politically-driven approach in Wilson be far behind?

Posted by: Anonymous | Feb 5, 2005 12:24:12 AM

I have to disclose that I clerked for Judge Kelly, so obviously I have bias. He's a big part of the reason I do criminal defense work now.

In thinking over Rodriguez, it seems to me that the 11th Circuit's first error is in substituting their own judgment for that of the district court in how the sentence would be viewed in a post-Booker world. I'm not surprised by the 10th's approach to this, in my experience they have always been very deferential to the district courts.

The other, and more important error of Rodriguez, is the court's almost complete failure to recognize and/or address the procedural defect in the sentencing judge not having had the benefit of all the information appropriately considered under 3553(a) now that the Guidelines are merely advisory. The sentencing court may now consider personal information about the defendant that was prohibited under a mandatory Guideline scheme. Accordingly, any sentence imposed pre-Booker being reviewed on direct appeal is, in my view, procedurally deficient, in that defendant was precluded from raising and arguing mitigating evidence appropriately considered at sentencing post-Booker.

That's what I think bothers Judge Kelly in this case. He doesn't come out and say it explicitly, but it's there, and it's a procedural concern -- the appeals court can't say what the district court would have done if they'd heard from the defendant on those other factors that were impermissible but are now permissible, and they aren't about to subsitute their judgment for the district court's on that question.

The 11th Circuit's focus on the end result -- would the sentence change? -- is too broad an inquiry. The sentence itself is almost beside the point in this situation. If the error, as I maintain, is the failure to consider mitigating evidence not allowed under a mandatory Guidelines scheme, I cannot imagine an error more probable to undermine confidence in the outcome.

I'd be interested in hearing other thoughts on Rodriguez. I have a case on direct appeal in the 7th Circuit that may be the 7th's vehicle for ruling on plain error (although I maintain that for a pre-Blakely, pre-Booker sentencing, trial counsel did a terrific job in preserving the essence of the issue for appeal).

Thanks again for this great blog.

Posted by: Donna Thompson-Schneider | Feb 5, 2005 9:55:28 AM

I am a semi-retired and very old advoca-
te for the defense when appointed
by the court. An old "client" has
contacted me for assistance for the owering of her sentence after Booker/Fanfan. She was sentenced to life at the Orlando Dist Ct., did not appeal, but gave "assistance" and had the sentence reduced to 17 1/2 yrs. She has filed two 2255's Pro Se, with no success. The most recent one in Oct 2004. What are my options?
I believe that a new constitutional right was created by the SupCt in Booker, do you share my view? If so then my "client" should have the right to file a new 2255 under Booker....??

Thanks for your assistance.

Luis F. Gomez, Sr.
1500 So. Semoran Blvd.
Orlando, FL 32807


Posted by: Luis F. Gomez, Sr. | Mar 6, 2005 10:08:15 PM

gateway m680 battery

Posted by: | Oct 14, 2008 8:15:47 AM

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