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July 10, 2005

Barnett receives lower sentence after remand

After a bit of a rocky start handling Booker plain error, the Sixth Circuit in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (discussed here), officially settled on the circuit's "presumed prejudice" approach (which seems to me to be the soundest of the three divergent Booker plain error standards).  This past week I got word that Yervin Barnett was re-sentenced and received 235 months' imprisonment (the low end of the applicable guidelines range) instead of the originally imposed 265 months (the middle of the range).  In the words of the person who sent me this news: "Looks like the Sixth Circuit was correct in remanding due to the possibility of a lower sentence."

Besides the fact that Yervin Barnett ultimately got a lower sentence, the Barnett case is worth remembering because I believe the government's petition for cert. is still pending, and thus Barnett could conceivably still serve as a vehicle for the Supreme Court to consider these circuit-splitting plain error issues.  But, given that SCOTUS has already denied cert. in the Rodriguez case from the 11th Circuit (basics here, commentary here and here) and now that Yervin Barnett has actually been resentenced to a lower term, I would be very surprised by anything but a cert. denied in Barnett.

July 10, 2005 at 06:26 PM | Permalink


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