Monday, August 22, 2005

When judges are grumpy

On August 16, an ill-tempered panel found that a Tennessee facilitation of aggravated assault conviction was a crime of violence for purposes of U.S.S.G. 2K2.1(a)(4), because the specific felony underlying the facilitation charge provides the substance of the criminal conviction. In this case, because it was aggravated assault, it was, of course, a crime of violence. The judges then dismissed the alternative theory of the fearless assistant defender by finding that even though a person does not have to possess the requisite intent to be guilty of the underlying felony, there was still the serious potential risk of physical injury to another. Therefore, it was still a violent felony.

Then, in what seems to be contrary to other decisions, the panel did not remand for resentencing based on Booker. They picked up bits and pieces of language from the sentencing hearing and found that the district judge has sufficiently considered 3553(a). They looked at the fact that he said that the defendant could get his GED and vocational training and that he also said that if the guidelines were found to be advisory, he would have imposed the same sentence pursuant to the factors set out in 18 U.S.C. 3553(a). A decision about whether to pursue an en banc hearing is pending. U.S.A. v. Grady Chandler, Jr., No. 04-6203 (August 16, 2005).