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May 20, 2005

Late-night blog roaming for sentencing items

A late-night roam around the blogsphere has unearthed these notable posts on sentencing topics:

May 20, 2005 at 01:32 AM | Permalink


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Just a note on United States v. Garza-Lopez, No. 03-41750 (5th Cir. May 19, 2005). This is not a case of a Booker remand under plain error. What is important about this case is the Fifth Circuit stating that the sentencing court could not simply rely on a statement in the PSR to determine whether the defendant committed a "drug trafficking" offense under 8 U.S.C. 1326 when there is a question of whether the statute, in conjunction with the defendant's "activities," qualified as drug trafficking. See also United States v. Gutierrez-Ramirez, No. 03-41742 (5th Cir. April, 5, 2005). The sentencing court is limited to the statutory definition, the charging papers, and the jury instructions. It is no secret that the Fifth Circuit is not very "defendant friendly," but this case is an example of the Fifth Circuit doing some excellent work in the area of determining whether a defendant's previous offense qualifies as a crime of violence or drug trafficking offense and the limitations of what to examine to make that determination. Correspondingly, this and other cases that the Fifth Circuit has written in this area give decent guidance on Shepard and Taylor. In sum, a creative defense attorney can use this case to assist clients dealing with issues related to Almendarez-Torres.

P.S. This is also another good example of cutting edge appellate work from the Office of the Federal Public Defender, Southern District of Texas. Lastly, an interesting bit of trivia, who was the reversed district judge? It appears that it was none other than the Chair of the Sentencing Commission . . . . We all make mistakes.

Posted by: doug | May 20, 2005 9:42:53 AM

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