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May 13, 2005

Important Booker points from the ever-busy Eighth Circuit

The Eighth Circuit today is keeping a tight hold on the position of post-Booker decision pace-setter (its busy ways have been recently detailed here and here and here and here): I count on this opinion page four rulings addressing Booker issues (as well as a big and interesting death penalty habeas ruling which I may discuss in a future post).  All of the opinions today affirm sentences imposed pre-Booker, mostly on plain error grounds, and on the surface they seem uneventful.  However, two points in US v. McCulley, No. 04-1998 (8th Cir. May 13, 2005) (available here) seem worthy of attention.

First, on the issue of what qualifies as a sufficent admission by a defendant for Blakely or Booker purposes, the McCulley court directly states "a fact in the PSR not specifically objected to is admitted for purposes of Booker [and thus] McCully's Sixth Amendment rights were not violated because she admitted the facts supporting the enhancements by failing to object to the PSR."  Though other courts may have already ruled in a similar manner, I cannot remember seeing the point made so bluntly before.  As detailed by the amicus brief filed by the Federal Public Defender in the Northern District of Texas in Booker and Fanfan (discussed here), an argument can be made that SCOTUS precedent does not fully support this conclusion.  And the Third Circuit once noted pre-Booker, as discussed here, that there are "at least four possible interpretations of the language 'facts ... admitted by the defendant.'" 

Second, on the issue of whether and how within guideline sentences should be reviewed post-Booker, footnote 2 in McCulley suggests that even sentences imposed within properly calculated guideline ranges are now fully subject to review for reasonableness using the 3553(a) factors.  The McCulley court in footnote 2 explains that, pre-Booker, the circuit "held that it lacks jurisdiction to review for excessiveness those sentences that are within the applicable guidelines range."  But, citing Booker, the McCulley court decided it should "exercise[] jurisdiction over McCully's [excessiveness] claim in order to review for unreasonableness, pursuant to the factors in 18 U.S.C. ยง 3553(a)."

May 13, 2005 at 02:34 PM | Permalink


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Thanks for the plug.

P.S. I am not certain that Judge Kopf was complimenting you or not in footnote 28 of Bailey.

Posted by: doug | May 13, 2005 6:16:22 PM

My philosophy is when in doubt, treat it as a compliment.

Posted by: Doug B. | May 13, 2005 7:27:33 PM

A half-full glass is better than a half-empty glass every time!

Posted by: doug | May 14, 2005 3:33:32 PM

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