Saturday, February 19, 2005

Nationwide Booker Fanfan Blakely roundup!

Here is a quick weekly summary of rulings from the Second, Third, Ninth and Tenth Circuits:

From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).

From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."

From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."

From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.


The Courts are already starting to chip away at the scope of the Booker/Fanfanruilings. If you are a federald defedant facing chargs you need to be aware of these cases.
Some of the things that are suggested are:
(1) Judges may be able to enhance your sentence based upon your admissions (saying nothing before you speak to a lawyer is critical); however, almost all of these rulings from last week suggest that
(2) Most federal criminal defendants whose appeals are still pending, or within one year thereafter are entitled to re-sentencings.

Chip Venie
chipesq@hotmail.com
(619) 235-8300

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