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Criminal Law

: Kansas Federal Defender

But I #%@*! Forgot to Raise the Gall Issue!

By Melody Evans and Kirk Redmond

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So- your client has an appeal pending, and you didn?t raise a sentencing issue now impacted by Gall or Kimbrough. That is bad. How do you fix it? Don?t just send a letter of additional authority- ask to brief the issue. We have been through this before. After Blakely was decided, a number of defendants tried to raise the Sixth Amendment issue after filing their initial brief. In United States v. Maldonado-Ramirez, 384 F.3d 1228 (10th Cir. 2004), the Court held that filing a Rule 28(j) letter of additional authority was insufficient to present the issue for appellate review. The Court there chastised counsel that, ?Blakely is not relevant to the issue Maldonado-Ramires raised on appeal, and because Maldonado-Ramires did not ask to file a brief raising a proper Blakely challenge, we do not consider the matter further...continue to full post

Full post as published by Kansas Federal Defender on December 10, 2007 (boomark / email).

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