Thursday, February 10, 2005

'Plain error' extended to the West on Booker Blakely claims!

The Ninth Circuit (the federal court of appeal for most of the Western states) ruled yesterday that "plain error" analysis is to be applied to Booker Fanfan Blakely Apprendi claims of sentencing error.

What this means is that almost ALL federal prisoners in the west who were sentenced after June 26, 2000, and whose sentences were enhanced by the judge, have a right to a new sentence, AND TO HAVE THEIR OLD SENTENCE THROWN OUT! The Court said as much in its opinion.

In United States v. Ameline, the Court echoed the Fourth Circuit, in Hughes, and held that it does not matter if you lawyer failed to object to your sentence, your former lawyer cannot be held responsible for failing to understand that you had a right to sentencing outside of the guidelines.

Mr. Ameline's case is like so many we have seen in the last ten years. Ameline had his sentenced enhanced because the judge found that he had possessed more than a kg of meth in connection with the conspiracy. Ameline disagreed about the amount of meth.

Mr. Ameline's sentence was also enhanced because his offense level was raised two levels because the judge found that he had possessed a weapon in connection with the drug possession. The judge based this finding on the hearsay testimony of a snitch that stated that Ameline had traded some meth with him for a rifle and that he had once seen Ameline threaten his son with a rifle.

The district court enhanced his sentence based upon those two factors and that sentenced him to 150, the middle of his range of 135-168 months, based upon an total offense level of 33. This is even though the maximum that Ameline could have faced based upon what he admitted oin his plea bargain, was 16 months in prison, given a base offense level of 12.

The Ninth Circuit overturned the sentence, and remanded for a JURY TRIAL on the two sentencing factors, the gun and the AMOUNT OF DRUGS. The Court held that "Ameline was deprived of his right [under Blakely and Booker] to have a jury find beyond a reasonable doubt the quantity of drugs attributable to him. "

But the Court went even farther, they stated that unless your case was "truly" exceptional, you as a defendant would almost always be entitled to a resentencing under the new Blakely Booker holdings. And the Court said on resentencing, that the district court must apply all of the new factors set forth for resentencing and is not constrained on its ability to depart and fashion a sentence that the Court truly thinks is fair and "reasonable."

Link to the case:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/68A618A338BB0B4188256FA3000764E6/$file/0230326.pdf?openelement

The impact of this is staggering. Defense counsel are no longer restrained in their pleas to federal courts on behalf of their clients. Truly innovative defense counsel can now obtain low(er) sentences on almost any grounds.

Our firm concentrates solely on criminal defense matters. I have personally handled over 130 federal criminal appeals, and over 600 other felony matters.

Call or email today.

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



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