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June 5, 2005

Doozy DC dicta on Booker

Friday was a big day in the circuits, and I have already discussed Booker developments in the Eighth and Ninth Circuits, a big Blakely ruling in the First Circuit, and a big Apprendi habeas ruling in the Second Circuit.  But also making noise on Friday was the DC Circuit (which has been perhaps the quietest Booker circuit to date).  And the noisiest part of US v. Price, No. 03-3088 (DC Cir. June 3, 2005) (available here) is some of the dicta from Judge Henderson in her partial concurrence.

In Price, the majority concluded that a sentencing reversal and remand was necessary because "the District Court committed error by: (1) denying Price's request for a third-level reduction for acceptance of responsibility when, under the plain language of the Guidelines, Price was entitled to such a reduction; and (2) including one of the two Maryland convictions in the calculation of Price's criminal history score, when Price clearly disputed that conviction and the Government did not sustain its burden of proof in establishing the conviction."  These rulings and the Price court's account of Booker make for interesting reading.

But what makes Price really stand out are the comments from Judge Henderson in her partial concurrence about what can happen upon remand and about the nature of post-Booker sentencing.  Here's a sample:

Under the new sentencing regime, and on this record, I believe it would be reasonable for the sentencing court on remand to decline to consider awarding Price any credit for accepting responsibility and to re-impose, if not increase, the sentence vacated herein....  Given that Price’s public criminal record reveals a man determined to burnish his criminal credentials and at society's expense — two factors appropriate for consideration on resentencing, see 18 U.S.C. § 3553(a)(1) & (2)(C) — I believe the sentencing court could reasonably decline to lessen his punishment in any way, including by considering his alleged acceptance of responsibility....

As to the two Maryland convictions, I do not agree that, on remand, the government must "meet its burden under [our pre-Booker precedents].... The reason such pin-point accuracy was necessary, however, was that the prior conviction had to constitute a "crime of violence" in order to be used in computing the defendant's offense level.  But "offense levels," "adjustments," "departures" and all of the other Guidelines argot has been jettisoned by Booker. We now operate in a "back to the future" sentencing world when, pre-Guidelines, all that our Circuit required of the government in this regard was that it submit "some verification," — that is, any "evidence of a sufficiently reliable caliber" — to support the information that it supplied the sentencing court and that the defendant challenged.

June 5, 2005 at 10:25 AM | Permalink


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Yet another veiled threat from the bench--appeal your sentence and we'll increase it. So much for Apprendi and Booker.

They let us down again on relevant conduct. They insist on sentencing additional time over and above the guidelines for something not pleaded to by the Defendant nor found by a jury.

When will the judiciary wake up or do we need new judges? The Constitution is very clear on due process.

We don't need judges and juries if the prosecution can direct the sentence and get the amount of time they want through a PSI. And that's what is happening now.

Posted by: ST | Jun 5, 2005 3:08:34 PM

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