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May 3, 2005

Rapid Booker tour around the circuits

What would a weekday be without some discussion of Booker circuit opinions?  I guess we won't find out today, as I provide some very quick circuit highlights here.  Not all of the cases noted below are ground-breaking, but they all make for quite interesting reads.

From the First Circuit, US v. Bailey, No. 03-2362 (1st Cir. May 3, 2005) (available here) is an appeal by "one of seven jailers charged with federal offenses arising from five incidents ... where guards employed excessive force against pretrial detainees and then acted to conceal their misconduct."   The First Circuit affirms in an opinion that rejects the defendant's invitation "to disregard Antonakopoulos and hold instead that the burden should rest with the government to defend the pre-Booker sentence."  Appellate Law & Practice provides more highlights in this post.

From the Second Circuit, US v. Gonzales, No. 04-1956 (2d Cir. May 3, 2005) (available here) has an interesting post-Booker discussion of the rule of lenity.  Appellate Law & Practice provides more details and highlights in this post.

From the Fifth Circuit, US v. Guevara, No. 03-11299 (5th Cir. May 2, 2005) (available here) involves an appeal from a life sentence imposed on a defendant who committed an "anthrax hoax"  through a letter written and mailed to a US District Judge.  Notably, the application of the career-offender provisions raised the defendant's guideline sentence from a high of 78 month to life imprisonment, but on appeal the defendant's various sentencing challenges were rejected.  Appellate Law & Practice provides more highlights here.

From the Seventh Circuit, we get three notable criminal opinions, all of which involve sentencing remands: US v. Ngo, No. 04-2662 (7th Cir. May 3, 2005) (available here), covers criminal history issues and seems to have interesting Shepard analysis; US v. White, No. 03-2875 (7th Cir. May 3, 2005) (available here), and US v. Castillo, No. 02-3584 (7th Cir. May 3, 2005) (available here), seems like a fairly standard Paladino remands but they become more noteworthy because Judge Easterbrook, dissenting from the decision not to rehear these appeals en banc, complains about "applying Paladino to no-constitutional-error situations."

From the Eleventh Circuit, US v. Ducas, No. 04-15319 (11th Cir. May 3, 2005) (available here) proves it is possible to previal on plain error in the 11th Circuit.  Also, the facts and holding of the Ducas reveals that some defendants benefit from the fact that the 11th Circuit is not focusing upon the fourth plain error prong (as is the 10th Circuit and as Judge Easterbrook would like to do).  Appellate Law & Practice provides more details on Ducas and a few other recent 11th Circuit Booker decisions in this post.

UPDATE:  I also now see that the Tenth Circuit has released a half-dozen published sentencing opinions, one of which involves Booker remands but the most of which involve affirmances of sentences on various grounds.

May 3, 2005 at 07:50 PM | Permalink


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My partner argued Ngo. I found it interesting that he convinced the court, in light of Shepard, that facts surrounding a prior conviction (as opposed to the fact of conviction) fall outside the Almendarez-Torres exception. A different panel rejected that argument when I made it in Schlifer (decided 4/7), although the Schlifer decision cites Shepard. And Ngo cites Schlifer but doesn't acknowledge or resolve the conflict. (Fortunately, both cases ended with a remand -- full in Schlifer, limited in Ngo.)

Posted by: TChris | May 4, 2005 11:58:47 AM

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Posted by: | Oct 14, 2008 10:23:23 AM

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