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May 20, 2005

SG is seeking cert. on plain error!

As revealed by the week-in-review post below, I was ready to pack it in for the day a few minutes ago.  But, a last check of e-mail brings news of a big filing by the Solicitor General in the Supreme Court concerning the Booker plain error mess.  Specifically, in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit (details here and here), the SG has responded to the defendant's cert. petition by saying review is warranted.  Here is the key opening paragraph in the filing you can download below:

Petitioner contends that this Court's review is warranted to resolve a conflict in the circuits on the proper application of the plain-error standard to forfeited claims of sentencing error under Booker. The court of appeals in this case correctly held that petitioner was not entitled to relief on his unpreserved Booker claim, and the conflict in the circuits involves a transitional issue that may have limited continuing importance once the cases in which sentences were imposed before Booker have become final.  Nonetheless, the multi-circuit conflict on the issue is deep and real, and it implicates issues concerning the proper conduct of Plain-error review that could recur in other contexts.  Accordingly, this Court's review is warranted.

Because I have tickets to see Revenge of the Sith this evening, commentary may have to wait on this big development that I'm calling Revenge of the BIPP (Breyer's Incomprehensible Pipeline Paragraph).  In the meantime, readers are urged to use the comments to weigh in on this interesting development.

Download rodriguez_041148_resp.pdf

UPDATE: Lyle Denniston at SCOTUSblog provides this post with background on the facts of Rodriguez and the development of the plain error issue.  Also, in this post way back in February, I discussed the original cert. petition filed by the firm Jones Day.  That petition, which is now a bit dated due to all the subsequent circuit developments, is available at this link.

May 20, 2005 at 04:14 PM | Permalink


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Iam a defense attorney in Miami Florida. I have a client that is set for sentencing in Mid July. He is a Doctor who went to trial and was convicted of one count of conspiracy to commit health care fraud and seven substantive counts health care fraud. The Total amount of the substantive counts was $4,100.00. The Doctor was indicted pre-Booker and the Government did, by choice, move to strike the post blakely "sentencing enhancements" as surplase and the motion was granted. Neither the indictment nor the verdict form contained a specific dollar amount for the conspiracy which the government claims is arguably anywhere between 3.9 to 5 million dollars.
I am in the midst of preparing the sentencing memorandum advancing the argument that the doctor can only be sentenced on the th $4,100. amount which is a level 6 in the guidelines and represents 0-6 months. Alternatively if he is enhanced it goes up 18 levels to 60 months. He is 73 years old and has the traditional age and infirmity arguments etc. I have a "scholarly" judge who I have faith will rule of the es post facto and due process arguments I am preparing. There are two cases out of the 11th circuit that you may have see U.S. v. Juan Paz at 04-14829, decided April 5, 2005 and U.S. v. Vladimir Rodriquez WL 272952 on it way up to the Supreme Court on Petition. While these both address the issue of Plain Error there is another 11th Circuit (U.S. v. Garcia) that addresses this issue as preserved error which was reversed and remanded for sentencing in conformity with Booker. In Garcia the defendant was found guilty of 100 marijuana plants and the sentencing judge hit him with more plants based on the conspiracy amount. The 11th reversed to reduce his sentence.

I have asked around and I feel I have a not so common case because my guy went to trial and the governemtn did not prove up the conspiracy amount and he is a pipeline defendant since he offended before booker.

Any suggestions or direction would be greatly appreciated.

Emmanuel Perez
[email protected]

Posted by: Emmanuel Perez | Jun 14, 2005 10:38:14 AM

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