The 7th Circuit website has posted two additional opinions today, in addition to the three in my earlier entry. The second is a Blakely opinion.
LIAN, YI-TU v. ASHCROFT, JOHN (On Petition for Review of an Order of the Board of Immigration Appeals)
Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Lian, a Chinese citizen, asks us to set aside an order issued by an immigration judge and affirmed without opinion by the Board of Immigration Appeals removing him to China. He claims that sending him back to China would violate Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (1984). * * *
The order of removal is vacated and the case remanded. As in a number of recent cases, the inadequate performance by the immigration judge leads us to recommend that the case be reassigned to another immigration judge. E.g., Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir. 2004); Niam v. Ashcroft, supra, 354 F.3d at 660-61; Arulampalam v. Ashcroft, 353 F.3d 679, 688-89 (9th Cir. 2003).
USA v. SHEARER, KENNETH (ND Ind., Judge Lee)
Before FLAUM, Chief Judge, and DIANE P. WOOD and EVANS, Circuit Judges.Note: Unless I've lost track, this is the first Indiana federal district court sentencing ruling sent back by the 7th Circuit based on "Blakely as interpreted by Booker." Interestingly, another 7th Circuit panel today affirmed a sentencing case [USA v. Garcia-Vasquez, Miguel (ED Wis.) - scroll two entries down] with no mention of Blakely. There were enhancements, albeit based on prior criminal history: "The sentencing guidelines provide that a defendant’s criminal history score is to be increased by two points if he 'committed the instant offense while under any criminal justice sentence ....' U.S.S.G. § 4A1.1(d). The district court added two points to Garcia-Vasquez’s criminal history score because of the outstanding warrant for his California probation violation."
FLAUM, Chief Judge. On June 20, 2002, Kenneth Shearer was convicted of dealing in display fireworks without a license issued by the Bureau of Alcohol, Tobacco & Firearms (“ATF”), placing false labels on cases of display fireworks, and knowingly receiving display fireworks in interstate commerce. He now appeals his conviction and sentence. For the reasons stated herein, we affirm the judgment of conviction and remand the case for resentencing. * * *
Shearer next contends that his sentence was improper. Specifically, Shearer challenges several enhancements to his sentence based upon the district judge’s factual findings that: (1) Shearer’s offense involved more than 1,000 pounds of explosive materials; (2) Shearer was the organizer or leader of a criminal organization that involved five or more participants or was otherwise extensive; (3) Shearer used a minor to commit the offense; and (4) Shearer committed perjury by denying virtually every fact material to his guilt at trial. Additionally, Shearer believes that he merited a sentence reduction for acceptance of responsibility.
Although such challenges to the application of the Sentencing Guidelines would have presented us with little difficulty a few weeks ago, the Supreme Court’s decision in Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004) and our reading of Blakely in United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), demonstrate that the constitutional validity of the Guidelines is in doubt. See also United States v. Pineiro, 2004 WL 1543170 (5th Cir. July 12, 2004) (addressing this issue but holding that Blakely should not be read to invalidate the U.S. Sentencing Guidelines). Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant’s sentence. As Booker holds, the Guidelines’s contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. Thus, in light of Booker, we must remand this case to the district court for resentencing.
To quote Judge Posner from Booker: "(2) in cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety." [my emphasis]
The Shearer panel today reiterates the Booker statement that the constitutional validity of the Guidelines is in doubt. The Garcia-Vasquez panel does not, and in fact, includes no reference to Blakely/Booker. For the sake of orderliness during this period of disorder, I'd like the Garcia-Vasquez panel to have noted, at least in a footnote, that the reliance on Guideline references will not stand in the event the Guidelines are found to be invalid in their entirety (i.e not severable) rather than invalid only insofar as determination of factual issues relating to enhancements is involved.Posted by Marcia Oddi at August 12, 2004 07:58 PM