US v. Knows His Gun, No. 04-30302 (2-15-06). No, this is not a felon in possession case. Rather, and unfortunately, it is an important sentencing case regarding those sentences that occurred after Blakely but before Booker, in which the district court imposed an alternate sentence that anticipated a non-mandatory guideline outcome. Here, defendant was convicted of agg sex assault. The court found several sentencing enhancements. The court rejected a Blakely challenge, holding that the enhancements had been admitted by the defendant. As to a challenge as to the constitutionality of the guidelines, the court imposed an alternate sentence, using the guidelines as "providing useful instruction" on the appropriate sentence, even though it did not have the force of law. The court further explained that the guidelines "carefully and thoughtfully developed" sentencing over the years (Ed note: how gullible and naive courts can be!) and that sentences are generally just. The alternate sentence -- surprise surprise -- was the same as the guideline sentence. On appeal, the 9th considered the issue of an alternate sentence. The 7th circuit found that the 6th amend. wasn't violated if a court imposed an alternate sentence that accurately predicted the outcome of Booker. The 9th joined that reasoning, holding "that a sentence does not contain constitutional Booker error if the district court provided an alternative sentence, or a rationale for the primary sentence, that correctly anticipated the holding of Booker and exercised discretion in imposing sentence within the statutory range." The district court here correctly considered that the guidelines could be nonbinding, and so issued a discretionary sentence that apparently considered the 3553 factors.

Defendant failed to object to the fact that the district court did not adequately consider the 3553 factors in imposing sentence, and this is reviewed for plain error. The 9th found no plain error because the district court seemingly considered the 3553 factors in explaining the sentence, and the weighing factors. The court did in fact sentence with guidance, the guidance being the 3553 factors. The 9th also found that the right to allocution was provided in the alternate sentence because the defendant was aware that such an alternate sentence was going to be imposed. This case though only concerns the "window" of alternate sentences between Blakely and Booker, and depends heavily on what exactly the district court predicted, how accurate it was, and what fcators it said it considered, and whether it was guided.

US v. Chief, No. 05-30214 (2-17-06). In this agg sex abuse appeal, defendant argued that the statute of limitations (S/L) barred his prosecution and that the court erred in restricting evidence. The 9th affirmed. The offense took place in 1997. The indictment came down in 2004. In between, the S/L was extended in 2003. Defendant cleverly argued that the new S/L didn't have a savings clause, which meant that the S/L in effect in 1997 (prosecution until a child's 25th birthday if the S/L would have elapsed), defaulted to a five year S/L. The 9th analyzed the claim, but noted that the S/L was extended, and that the S/L in effect in 1997 would have not have been triggered even when this indictment had been handed down. There was no "gap." As such, tehre was no ex post facto issue. The 9th also held that the preclusion of evidence was harmless. The victim's mother testified for the defendant that he daughter was a habitual liar. The defendant wanted to get in other testimony about delinquency and possible sexual assault in a facility. This was barred. The 9th found this harmless because the mother called her daughter a liar. The 9th also said that there was strong corroboration because of the defendant's confession (always the one damning fact). Still, the testimony would have provided an opportunity to explain motive in that the victim told about the sexual abuse to prevent being moved to another facility. The 9th notes that the court's ruling under 403 is for abuse, but when the court fails to do a balancing, it is reviewed under de novo (a fact to keep in mind).