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April 3, 2005

Another alternative sentence affirmance from the 4th Circuit

I discussed here two recent (unpublished) Fourth Circuit dispositions in cases in which the district court, in the wake of Blakely and before Booker, had announced an alternative sentence just in case the federal guidelines were deemed unconstitutional.  On Friday, the Fourth Circuit resolved another such case, and in US v. Washington, No. 04-4721 (4th Cir. Apr. 1, 2005) (available here), the court affirmed a sentence imposed under the guidelines because the "district court also specified an identical alternative sentence of 102 months."   In Washington, the Fourth Circuit, as it did the day before in Anderson, No. 04-4621 (available here), said that the announced identical alternative sentence showed that "any error resulting from the sentence imposed by the district court was harmless."

As I think about the dispositions in Anderson and Washington, I must admit to being a bit troubled by the exact harmony of the guideline sentence and the advisory sentence announced by the district court.  Also, I think that, in these cases, the Booker opinion may impose upon the Fourth Circuit an obligation to assess independently whether these alternative sentences are "reasonable."

April 3, 2005 at 03:29 AM | Permalink


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Prof. Berman,
Thank you for your very helpful Blog. I am a CJA panel attorney handling several appeals in the Fourth Circuit. I have been routinely filing motions to "suspend briefing and to remand for resentencing in light of United States v. Hughes." Where we have indicated the likelihood of an Anders brief except for the Booker issue the government has not opposed the motion. In those cases the Court has granted the motion to suspend "pending resolution of the motion to remand." Where no schedule had been set for briefing the court has simply done nothing yet with the motion. Of course, I expect nothing final until Hughes is considered enbanc.
I would greatly appreciate any insight or suggestions you may have regarding issue of whether judicial ex post facto may prevent enhancements not found by jury for any pre-Booker criminal activity contrary to 11th circuit's Duncan decision. Do you know of any other cases?
Thanks again for all you are doing. David

Posted by: David B. Betts | Apr 4, 2005 4:34:23 PM

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