United States v. Briceno-Rosado, 10th Cir. (2005)
United States v. Briceno-Rosado, 10th Cir. (2005)
TENTH CIRCUIT
FEB 18 2005
PATRICK FISHER
Clerk
No. 04-1345
v.
(D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
Briceno-Rosado
entered into a plea agreement with the government admitting the conduct charged
in the indictment. In return, the government agreed to recommend a three-level
decrease in his offense level, based on his acceptance of responsibility, and
agreed to recommend a sentence at the bottom of the range mandated by the
United States Sentencing Commission,
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Blakely v.
hearing on July 12, 2004, the district court determined that more analysis of the
question was needed and ordered supplemental briefing. On August 2, 2004, the
district judge issued a written order denying the defendants motion and
concluding that Blakely was not implicated because sentencing Briceno-Rosado
did not require him to engage in judicial fact-finding. On August 20, 2004, the
defendant was sentenced to seventy-seven months in prison, followed by three
years of supervised release. He now appeals, again arguing that the Guidelines
are unconstitutional in their entirety, thereby necessitating resentencing.
When Briceno-Rosado raised Blakely both to the district court and to this
court, the Supreme Court had not yet issued United States v. Booker, 125 S. Ct.
738 (2005). However, raising Blakely is sufficient to raise an argument under
Booker. Accordingly, he has preserved an argument under both cases before the
district court and before us, and we hereinafter refer to both cases. We granted
both parties permission to file supplemental briefs on the effect of Booker,
although the government elected not to file one.
2
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Apprendi v. New
Jersey , 530 U.S. 466 (2000), that [o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Blakely , 124 S. Ct. at 2536 (quoting
Blakely clarified
that the statutory maximum is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose
additional findings.
without any
Booker
held that the Sixth Amendment requires that [a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.
imposed a global remedy for the Sixth Amendment difficulties with the
(...continued)
authority to the Sentencing Commission, was still valid).
3
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United States v.
while sentencing errors are harmless in some circumstances, the district courts
error of sentencing Labastida-Segura while believing the Guidelines were
mandatory was not harmless:
Here, where it was already at the bottom of the guidelines range, to
say that the district court would have imposed the same sentence
given the new legal landscape (even after consulting the Sentencing
Guidelines in an advisory capacity) places us in the zone of
speculation and conjecturewe simply do no know what the district
court would have done after hearing from the parties. Though an
appellate court may judge whether a district court exercised its
discretion (and whether it abused that discretion), it cannot exercise
the district courts discretion.
Id. Like Labastida-Segura, Briceno-Rosado was sentenced at the bottom of the
sentencing range, and we likewise have no way to determine if the district judge
would have imposed the seventy-seven-month sentence in light of
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Booker . In
Labastida-Segura . 4
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