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December 28, 2010

Notable Fifth Circuit ruling about review of guideline calculation errors

I have been remiss in not spotlighting a recent and throughtful panel ruling from the Fifth Circuit about the review of guideline calculation errors for harmlessness.  The opinion was handed down last week in US v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (available here), and here is how it begins:

In United States v. Morales-Sanchez, we held that a district court must always “correctly calculat[e] the applicable Guidelines range” before imposing a sentence.  Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencing regime of Booker and progeny, the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing.  On the facts before us, we conclude that this high hurdle has not been cleared and remand for resentencing.

December 28, 2010 at 12:33 PM | Permalink


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