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February 22, 2005

Two for Tuesday from the First Circuit

As I suspected here, it appears that at least one Circuit took advantage of the long weekend to polish Booker opinions.  Specifically, the First Circuit today issued Booker rulings in US v. Antonakopoulos, 03-1384 (1st Cir. Feb. 22, 2005) (available here), and US v. Sahlin, 04-1324 (1st Cir. Feb. 22, 2005) (available here). 

Antonakopoulos is the big one, as the court begins by noting the decision sets forth "our standards for review of unpreserved claims of sentencing errors in the aftermath" of Booker:

To summarize our position at the outset, we intend to apply, in accordance with Justice Breyer's admonition, conventional plain-error doctrine where a Booker error exists but has not been preserved.  The Booker error is that the defendant's Guidelines sentence was imposed under a mandatory system.  The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.  A mandatory minimum sentence imposed as required by a statute based on facts found by a jury or admitted by a defendant is not a candidate for Booker error.  The first two Olano requirements — that an error exists and that it is plain at the time of appeal — are satisfied whenever the district court treated the Guidelines as mandatory at the time of sentencing.  But to meet the other two requirements — that this error affected defendant's substantial rights and would impair confidence in the justice of the proceedings — we think that ordinarily the defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new "advisory Guidelines" Booker regime.... We engage in case by case review and we reject certain automatic reversal rules.

Sahlin also merits attention, since it purports to "consider the effect of the Supreme Court's decision in Booker in cases involving guilty pleas."  In that context, the First Circuit rejects "Sahlin's claim that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by Booker."

February 22, 2005 at 03:33 PM | Permalink


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I am a petitioner defendant seeking a new sentencing based on Blakely v. Washington. The District Court has granted me a COA on the issue of the application of Blakely to my case.

I am still wondering what the Courts will rule on the retroactive application of Blakely to cases on habeas corpus. The Ninth Circuit has just ruled that Crawford v.Washington stated a new procedural rule and implicated concerns of fundamental fairness and accuracy of criminal proceedings; it therefore qualified for retroactive application. ( See Bockting v. Bayer, 9th Cir. 05 C.D.O.S. 1529,FEB 22, 2005).

I was sentenced in Aug of 2000 after Apprendi. My lawyers had raised the Apprendi violation when the district court enahnced my sentence from 9 level to 21 by his own finding. This issue was not raised on direct appeal. My conviction for conspiracy to make false statment was confirmed by 9th Cir in Aug ofr 2002. I filed a motion to vacate the sentence which was denied. I filed a motion top reconsider based on Blakely in 2004,when the court granted me a COA. I am waiting for appointment of counsel to represent me for my appeal.

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Posted by: RAMA K HIRALAL | Feb 25, 2005 1:16:13 PM

hi my name is Nadine, i am a student.
i need some info on comparing and contrasting between restorative justice alternatives and conventional sentencing. please get back to me asap thanks!!

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