finding that the defendant’s substantial rights were affected because “the district court’s comments at sentencing make it seem likely . . . that Defendant would have gotten the low end sentence of 30 months had the court used its discretion”
How later courts described this case
- finding that the defendant’s substantial rights were affected because “the district court’s comments at sentencing make it seem likely . . . that Defendant would have gotten the low end sentence of 30 months had the court used its discretion”
- stating that Booker does not forbid all judicial fact-finding in sentencing ... post-Booker judges may enhance sentences based upon facts not found by a jury, provided they do not consider themselves required to do so.
- stating that “[i]n a case such as this one, where Defendant contests the manner in which the district court applied the consulted Guideline, we are instructed to review the sentence for reasonableness.”
- finding that the defendant forfeited his Booker claim " [although [he] vehemently objected to the amount of loss before the district court[] [because] he failed to do so on Sixth Amendment grounds"
Written by the judges who cited it.
The opinion
COOK, Circuit Judge,
concurring.
I write separately only to note that Booker does not forbid all judicial fact-finding in sentencing, as a reader of the majority’s opinion here might infer. The Booker majority held:
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.
United States v. Booker, 125 S.Ct. at 750 (Stevens, J.). After Booker, of course, the guidelines are merely advisory. Id. at 757 (Breyer, J.). Thus, post-Boo/cer, judges may enhance sentences based upon facts not found by the jury, provided they do not consider themselves required to do so. With this clarification, I concur.