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| Booker Cases |
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United States v. Atencio,
No. 05-2279 (10th Cir., January 17, 2007) (Published): Federal Sentencing Guidelines; Booker Cases: Unusual case where the en banc court split 6-6 on the question of whether the case should be decided en banc initially. Since there was no majority, the motion for initial en banc consideration is denied. Judge Murphy, joined by Judges Kelly and Briscoe, penned a strong dissent to the denial of initial en banc consideration. At issue is the scope of sentencing discretion by the District Courts after Booker. Judge Murphy stated that the circuit has previously "paid lip service" to the notion that District Courts possess substantial discretion in sentencing but the opinion in Atencio impedes this vast discretion. The panel in Atencio held that District Courts must provide pre-hearing notice pursuant to Rule 32(h) of its intent to vary from the advisory guideline range and also, in order to support a variance, the District Court must "undertake a detailed analysis of the propriety of the variance, with specific reference to the factors set out in 18 U.S.C. sec. 3553(a)." According to Judge Murphy, these requirements are incompatible with Booker and place significant burden on the District Courts. The panel in Atencio consisted of Judges Henry, Lucero, and McConnell, with Lucero the author of the panel opinion which reversed and remanded for re-sentencing in light of the notice requirement and the requirement for specificity. NOTE: the court denied initial en banc review, but it appears en banc review may yet be had in light of the obvious divergent opinions among the judges.
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United States v. Holyfield,
No. 05-1318 (10th Cir., April 3, 2007) (Published): Federal Sentencing Guidelines; Booker Cases: Holyfield (not Evander) was KO'd in federal court when he was convicted by a jury of conspiracy to distribute over fifty grams of crack cocaine and over five kilograms of powder cocaine which, because of his prior convictions, resulted in a mandatory minimum life sentence. In this appeal, Holyfield challenges his sentence on Sixth Amendment grounds, arguing that a jury must determine the existence of his priors and also that one of the prior overlapped with the instant offense. The Circuit AFFIRMED the sentence, although noting that in Shepard v. United States, 544 U.S. 13 (2005), Justice Thomas stated that "a majority of the Court now recognizes [the prior conviction rule] was wrongly decided." That may be true, said the panel, but until the Supreme Court says it is true in an opinion, the panel will continue to follow the applicable precedents.
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