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March 4, 2005

The 5th Circuit is silent no more!

Howard Bashman had the news (and my preferred title) first here at How Appealing: the Fifth Circuit has broken its surprisingly long Booker silence today (background here and here) with US v. Mares, No. 03-21035 (5th Cir. Mar. 4, 2005) (available here).  Here are the summary highlights:

Mares raised this [Booker] issue for the first time in his brief filed with us on direct appeal.  We agree with the Eleventh Circuit that our review is for plain error. United States v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.

UPDATE: Mares proves to be another case in which the court employed a quasi en banc process, as the court explains:

After circulating this opinion to all members of the court this panel has benefitted from and incorporated into the opinion many of their comments.

In addition, the Court in Mares goes out of its way to speak broadly to a range of post-Booker sentencing issues, noting that "we think it appropriate for us to explain at the outset how we understand the Supreme Court expects sentencing will proceed under its decision in Booker/Fanfan."  In Mares this means, inter alia, the most direct state by a Circuit court that post-Booker judicial fact-finding is to look just like pre-Booker judicial fact-finding:

The Guideline range should be determined in the same manner as before Booker/Fanfan. Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing.  125 S.Ct. at 750, 764.  The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.

The Fifth Circuit in Mares also comes closest to suggesting that a sentence within the applicable guidelines will be per se reasonable:

If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines. Given the deference due the sentencing judge’s discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say such a sentence is "unreasonable."

March 4, 2005 at 02:12 PM | Permalink


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So under this analysis, the sentencing judge's remarks are key. Something along the lines of "this is as low as I can go" would have to have been said.

Also, I guess if others defendants that were involved plead out and get much lower sentences, then that might be able to be raised if there was enough difference.

I got a question from attorney re if a person who has a 2255 motion before the court that was filed on June 20, 2002 could raise a Booker claim if the facts to support one where there.

Posted by: Jeff | Mar 4, 2005 2:46:48 PM

Disclaimer: this has nothing to do with right, wrong, or muddled and has everything to do with guesstimating.

I think we're going to see the 8th and 10th follow the 1st and 5th in following the 11th. In part because I do not think the 4th, 6th and 9th have done as well in developing their analysis. Regardless of whether you agree with their decision, I think the 11th and 1st have done a much better job in laying out their position and critiquing the opposing view. On the other hand, even though the 6th has been very active, they seem reluctant to engage the circuits who disagree with them substantively. Unlike, for example, the 7th which reached a different conclusion, but did so in a well-reasoned way.

If the 8th and 10th decide to go the way of the 6th, I hope they do a better job of fleshing out the analysis. I believe last I saw they attempted to justify their decision based on the SCt's remand of Fanfan - an argument that was disposed of quickly by the opposing side. I thought JonesDay's cert petition (hattip Prof. Berman) offered the best critique so far.

Two cents deposited.

Posted by: Nostradamus | Mar 4, 2005 3:13:03 PM

U.S. v. Mares? Just in case the F.C.C. is trolling this Blog, Oh #*@%! and %#^*!

Posted by: doug | Mar 4, 2005 7:12:17 PM

The weakness the of the opinion lies in following:

The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.Under U.S.S.G. § 6A1.3(b)(2004), which remains in effect, the district court is required to “resolve disputed sentencing factors in accordance with Rule 32(i), Fed.R.Crim.P.” The Commentary to this Guideline provides for use of the preponderance of the evidence standard."

Somehow, commentary in the guidelines has been elevated to a status approximating consitutional mandate. I wonder if Booker has any application at all.

Posted by: Philip T. Cowen, Attorney | Mar 5, 2005 10:08:58 PM

Personally, my favorite in the opinion is footnote 9, “[I]f either the Sixth Amendment issue presented in Booker or the issue presented in Fanfan is preserved in the district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure.”

Translation: If there is any way that we can stick it to the defendant on direct appeal and avoid remand so that the district court could use some discretion, we will.

Posted by: AFPD | Mar 10, 2005 3:17:27 PM

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