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August 1, 2007

Tenth Circuit on post-Booker sentencing and harmless error

A split Tenth Circuit panel issued an interesting set of opinions in US v. Arrevalo-Olvera, No. 06-2291 (10th Cir. July, 31, 2007) (available here).  The majority finds that the district court erred in its approach to post-Booker sentencing, but then holds that the error was harmless because the district court imposed a sentence above the bottom of the applicable guideline range.  The dissent, which sees the harmless error issue differently, begins this way:

I join that portion of the majority opinion holding that the district court erred by refusing to consider Arrevalo-Olvera's request for a variance below the applicable Guideline range until the district court satisfied itself that a sentence within the range would be unreasonable.  However, because we should not guess a defendant into a particular sentence when "[t]here is no concrete indication the district court would impose the same sentence on remand . . .," United States v. Nickl, 427 F.3d 1286, 1302 (10th Cir. 2005) (Murphy, J.), I respectfully dissent.  I would reverse the district court's decision and remand for resentencing.

August 1, 2007 at 10:18 AM | Permalink


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Rita only shows up in a footnote in the majority opinion. I'm surprised that it didn't figure more prominently in the opinions.

Posted by: | Aug 1, 2007 11:25:41 AM

Quite likely the opinion was largely written before Rita came out and the appellate judges didn't see any reason to reconsider what they had done.

Posted by: defense attorney | Aug 2, 2007 3:29:56 PM

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