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Tenth Creates Circuit Split with Ninth over Applicability of Booker at 3582(c)(2) Resentencings

By Shari Allison

U.S. v. Rhodes, 2008 WL 5102247 (12/5/08) (Published) - The 10th holds Booker does not apply to § 3582(c)(2) proceedings. As a result, the guidelines in § 3582(c)(2) proceedings are mandatory and a defendant seeking a lower sentence by virtue of a retroactive guideline amendment may not receive a sentence below the amended guideline range unless the defendant had received a below-guideline-range sentence at the original sentencing. The court reasons Booker did not refer to § 3582(c)(2), but § 3553(b). But how § 3582(c)(2) becomes mandatory without § 3553(b) is unclear. § 3582(c)(2) proceedings are not full resentencings, the 10th also notes. The 6th Amendment concerns in Booker don't matter because a sentence can only be reduced in a § 3582(c)(2) proceeding...continue to full post

Full post as published by Tenth Circuit Blog on December 09, 2008 (boomark / email).