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April 14, 2005

More plain error action from the 10th Circuit

One remarkable feature of the remarkable Tenth Circuit en banc decision on plain error in Gonzalez-Huerta last week (details here) was that the Court stressed that it was only addressing the plain error issue for cases in which the imposed sentencing did not involve a Sixth Amendment violation.  The Gonzalez-Huerta decision spotlighted a distinction, like the one I discussed here, between constitutional and non-constitutional errors in applying mandatory guidelines, and it stressed that the court's emphasis on the fort-prong of plain error rested on the plain error below being of the non-constitutional variety Gonzalez-Huerta.

Thanks to an FOB, I now see that the Tenth Circuit yesterday decided, in US v. Dazey, No. 03-6187 (10th Cir. April 13, 2005) (available here), how the plain error analysis is to work in cases with a Sixth Amendment violation.  This Dazey opinion is 59 interesting pages (though only the last 15 are on plain error), and it seems to spotlight a few points that other circuits have not made central to their analysis (though the circuit seems generally to follow the approach adopted by the 1st, 5th, and 11th Circuits).  The FOB also noted that the Dazey ruling is interesting in part because a panel of the 10th Circuit decided this plain error question while the full Tenth Circuit has the same issue before them in the briefed and argued en banc case of US v. Yazzie, No. 04-2152, which was a companion case to Gonzalez-Huerta.

UPDATEA helpful reader has now pointed me to another 10th Circuit plain error case decided yesterday.  In US v. Trujillo-Terrazas, No. 04-2075 (10th Cir. April 13, 2005) (available here), the court remands for resentencing, in a case without a Sixth Amendment violation, because the district court expressed reservations at the sentencing hearing regarding the mandatory guidelines sentence and because of the "disconnect between the newly relevant § 3553(a) factors and the sentence given to Mr. Trujillo."  Notably, this decision seems to apply the principles of Gonzalez-Huerta though it does not expressly cite or discuss this case.

April 14, 2005 at 04:59 PM | Permalink


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