Friday, July 28, 2006

US v. Lence, No. 05-30236 (7-27-06). If at first your sentence doesn't succeed..... Here, the defendant was convicted of bank fraud. The judge sentenced him, and bemoaned the fact that the guidelines forced a higher sentence than he wanted to give. The court's departure was then reversed on appeal, and remanded. There was grumbling on the second resentencing by the court, and then another appeal, during which time Booker came down. On the third go around, a different judge sentenced (the court had reassigned). The 9th holds this is error, because the remand for the third time wasn't an Ameline remand, but a preserved error remand, and the practice is to send it back to the sentencing judge. Thus, the original court gets a third crack. The 9th also holds that the gov't wasn't estopped from arguing for minimal planning or abuse adjustments. The gov't had asked for them on the first sentencing, but had forgone them on the second because of Blakley, only to argue for them in the third. They still can. The 9th sidesteps the issue of reasonable doubt and the standard of proof at sentencing.


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