Tuesday, July 12, 2005

Booker - "Crime of Violence" Determination Can Be Made By Judge
United States v. Hollingsworth, No. 04-6172 (6th Cir. 7/11/05) (Gilman, Clay & Cook, JJ.) (Held: the determination by the district court that a particular prior conviction of the defendant’s is a "crime of violence" does not violate the constitutional prohibition against judicial fact-finding in Booker as certain aspects of the character of prior convictions are so basic as to be implicit in the fact of a prior conviction, and a prior conviction’s character as violent is one of those; remanded based on previous mandatory nature of the Guidelines.)


Booker - No Waiver of Booker Issues in Original Plea Agreement
United States v. Amiker, No. 03-6001 (6th Cir. 7/11/05) (Ryan, J., Boggs, C.J., & Rogers, J.) (Held: to the extent that Bradley suggests that one who had agreed to be sentenced under the Guidelines waives his right to appeal under Booker, such holding is limited to the facts in Bradley where it was but one consideration supporting the finding of waiver; the Supreme Court in Booker said that where a defendant pleads guilty, the government is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact-finding; consent to judicial fact-finding cannot be found in an ordinary plea agreement; at the time of defendant’s plea agreement and sentencing, all plea agreements required, either explicitly or implicitly, that a defendant agree to sentencing under the Guidelines; where this agreement is spelled out, we see no reason to imply consent to judicial fact-finding; also questioning holding in Gilliam distinguishing between relief for Sixth Amendment errors but not for mandatory application of the Guidelines.)

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