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February 23, 2005

The Third Circuit speaks more fully on Booker (and Almendarez-Torres)

As I noted in my recent circuit round-up, the Third Circuit has not directly considered plain error issues but has established a pattern of Booker remands (examples here and here and here).  Today, in US v. Ordaz, No. 04-1671 (3d Cir. Feb. 23, 2005) (available here), the Court provides its fullest discussion of Booker issues to date, though it does not make the status of plain error any more clear.

Specifically, in Ordaz, the Third Circuit continues its seemingly odd practice of simply remanding, without any plain error discussion, for resentencing in light of Booker (which, I suppose, is better than the Eighth Circuit's recent practice, discussed here, of simply affirming sentences in light of Booker).  The Ordaz case has an added twist because the defendant was complaining about both offense-related guideline enhancements and prior conviction findings, and the Ordaz court had to address the prior conviction claim because it impacted the available statutory maximum sentences.  Here are some key passages from the Ordaz court's work:

With respect to Ordaz's challenge to the District Court's determination regarding drug weight and the enhancements (other than for prior convictions), the issue is best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker.

We turn to Ordaz's challenge to the enhancement for prior convictions [which impact his maximum statutory sentence].... Ordaz argues that the fact of prior convictions should have been submitted to the jury.... Ordaz argues that because of the decision in Blakely, "it is clear that Almendarez-Torres cannot stand."

We do not gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries.  Nonetheless, as an inferior federal court we have the responsibility to follow directly applicable Supreme Court decisions. 

The holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds otherwise.  Thus, because we are bound by Almendarez-Torres, we hold that the District Court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, notwithstanding that the sentences were based, in part, on facts found by a judge rather than a jury.

February 23, 2005 at 01:53 PM | Permalink


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The "Booker error" was preserved in Ordaz (via a pre-sentencing Apprendi objection), so there was no reason for the 3rd Circuit to discuss plain error.

Posted by: Jill | Feb 23, 2005 5:39:51 PM

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