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First Circuit Judges Lipez and Torruella Propose "Presumed Prejudice" Standard, which the Government can then Try to Rebut for Unpreserved Booker Claims

By Tom Lincoln

In United States v. Serrano-Beauvaix, No. 02-2286 (1st Cir. March 4, 2005) (a case involving an unpreserved Booker claim) the First Circuit holds that no remand for resentencing is necessary because "Serrano has failed to carry his burden that there is a 'reasonable probability' that he would be sentenced more leniently under an advisory Guidelines system. See United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005)." Judge Lynch writes:We have recently set forth the applicable framework for review of unpreserved Booker claims in Antonakopoulos. Utilizing the four-prong test in United States v. Olano, 507 U.S. 725 (1993), there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings...continue to full post

Full post as published by Puerto Rico Association of Criminal Defense Lawyers on March 04, 2005 (boomark / email).