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Appellate Law

: Appellate Law and Practice

CA1: supervised release revocation doesn?t get Booker or Blakely protection

By S. COTUS

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US v. Eirby, No. 07-1062.  As usual, Selya uses big words when sending someone to a hole.  This is a supervised-release revocation case based on a guilty plea in state court.  The judge ?imposing an additional thirty-three months of immurement.?  Apparently ?jail time? or ?incarceration? is not specific enough. 

Selya says that ?It is settled law that once a court imposes a fixed sentence in a criminal case, subsequent proceedings in regard to that sentence are not subject to the full panoply of Sixth Amendment protections.?  I don?t know if it is ?well-settled? or not.  If it was so well-settled, he Selya could have cited to one post-Blakely (or even post-Apprendi) from the Supreme Court saying that.  But, he didn?t.  Instead, he says that United States v. Work, 409 F.3d 484 (1st Cir. 2005) (our coverage here) applies.

Then Selya says that ?law of the circuit? rule (i.e. one panel binds a next) applies because of Booker.  But, Selya says that Booker came before Work, and Booker doesn?t undermine Work, and whatever the case, Selya says that Booker doesn?t matter that much and matters only reduces Booker to only this:  ?The short of it is that Booker constrains judicial factfinding only in a mandatory guideline sentencing regime.?  Does he really think that Booker is that limited?

On the merits, the First holds (based, in part on the appeal of his first conviction) that he was, indeed, convicted of a Class A Felony under 21 U.S.C. § 841(b)(1)(A), and Selya says that this appeal can?t be a collateral attack on that holding, and whatever the case, in the first appeal the First never held that he couldn?t have been sentenced to more than 40 years, so there couldn?t be Apprendi error, anyway.

Finally, on his state court crime (17-A M.R.S.A. § 254(1)(A-2)) , Selya says that having sex with a 14-year-old is a crime of violence, and comes up with some reasoning that I don?t get, doesn?t seem too coherent, but seems to say that there is inherently a risk of injury in such activity.  He also says that United States v. Sacko, 178 F.3d 1 (1st Cir. 1999) doesn?t prevent convictions for May-December sex crimes.

Full post as published by Appellate Law and Practice on February 07, 2008 (boomark / email).

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