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April 27, 2005

The 2d Circuit addresses more pipeline issues and the scope of the prior conviction exception

Today in US v. Fagans, No. 04-4845 (2d Cir. Apr. 27, 2005) (available here), Judge Jon Newman writing for the Second Circuit addressed a number of Booker "pipeline" issues that were not resolved in his Crosby plain error opinion for the Court.  Specifically, Fagans addresses:

(1) whether to remand for resentencing, rather than for consideration of whether to resentence, where an objection to the compulsory use of the Sentencing Guidelines has been preserved for review, (2) whether, in some circumstances, to review the correctness of a Guidelines calculation now that the compulsory nature of the Guidelines has been eliminated, and (3) whether the calculation was correct in this case.

And, the Fagans Court holds that "the Guidelines calculation should now be reviewed, that the calculation was correct, and that the case should be remanded for resentencing because the District Court understandably but erroneously applied the Guidelines in a compulsory manner and the Defendant preserved his objection to that error."

There are a number of interesting aspects of Fagans, and I was particularly intrigued by this statement about the scope of the "prior conviction" exception: "While the exact scope of the phrase 'fact of a prior' conviction has yet to be determined, see Shepard v. United States, 125 S. Ct. 1254, 1262 (2005), the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception."  This assertion about the scope of the prior conviction exception seems notable for various reasons:

1.  A number of criminal history enhancements in federal and state sentencing law turn not on the bare fact of a prior conviction, but rather on the "type and length of a sentence imposed" (e.g., federal criminal history calculations under the guidelines turn on the length of prior sentences; an Ohio enhancement asks whether the defendant previously served a prison term).  Expanding the scope of the purportedly "narrow" prior conviction exception in this way is not of minor significance.

2.  I suspect there are often some serious factual disputes over the "type and length of a sentence imposed" for a prior offense.  In cases with a conflicting factual record, allowing a judge to resolve any factual disputes (by a preponderance of the evidence?) is not of minor significance.

3.  Though I am not sure exactly why allowing a judge to make findings about the "type and length of a sentence imposed seems logically to fall within" the prior conviction exception, I am sure that the offense/offender distinction advanced in my article "Conceptualizing Blakely," 17 Fed. Sent. Rep. 89 (Dec. 2004) (available here) supports this (logical?) extension of the prior conviction exception.

April 27, 2005 at 03:14 PM | Permalink


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The Court's opinion on the criminal history enhancements notes that the defendant did not object to any of the PSR findings regarding his criminal history. I wonder if this lack of objection contributed to the Court's willingness to reject his criminal history argument on appeal so readily?

I am very concerned about the Court's inclusion of the "type of conviction" in its new expanded exception. This could be read to include disputes about whether a defendant was previously convicted of an offense that falls within the definition of "controlled substance offense" or "crime of violence" -- even though that determination seems almost certainly to be one that, under Booker and Shepard, as well as cannot be made by the judge if there is any dispute as to the relevant facts.

Posted by: Sarah | Apr 27, 2005 4:06:41 PM

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