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The U.S. Court of Appeals for the Second Circuit continues to sort out the review and remand of cases under a U.S. Supreme Court decision striking down a key aspect of the federal sentencing guidelines. Giving further guidance to the bench and bar on sentences found to violate the Sixth Amendment right to a jury trial under the Supreme Court’s January decision in U.S. v. Booker,the circuit clarified one circumstance under which a full resentencing hearing must be conducted in U.S. v. Fagans , 04-4845-cr. The decision will be published Thursday. The court found that defendants are allowed full resentencing hearings where their sentences were enhanced in violation of the Sixth Amendment and they have preserved their objection on the issue. Andrew Fagans was arrested after burglarizing a Vermont home with some friends and stealing a shotgun and some marijuana. He pleaded guilty to possessing a stolen firearm under a plea agreement. Vermont District Court Judge Garvan Murtha adopted the Probation Department’s Guidelines calculation, which included enhancements for both Mr. Fagans’ offense level and his criminal history category. Judge Murtha did so because the Second Circuit � while waiting with the rest of the federal judiciary for the Supreme Court to express itself on mandatory sentencing enhancements in Booker� told its courts that the guidelines were still good law until ruled otherwise. Mr. Fagans preserved his right to appeal by making, and then renewing, his constitutional objections to the enhancements. Judge Murtha sentenced him to 24 months in prison. In his review of the case law, Judge Jon O. Newman said Bookerexcised the requirement that the guidelines be applied in a compulsory manner, and that Mr. Fagans’ case was affected by Bookerbecause it was on direct review when the Supreme Court announced the decision. So while Judge Murtha was correctly following the circuit’s lead in applying the guidelines, the Bookerruling rendered his decision erroneous, Judge Newman said. The circuit followed Bookerby announcing its own approach for reviewing sentences for reasonableness. In U.S. v. Crosby,397 F. 3d 103 (2005), it set out a procedure for a limited remand on sentences invalid under Booker. Under this remand, the defendant does not appear but both sides are allowed to submit papers, said Vermont U.S. Attorney David V. Kirby, who briefed the Faganscase for the Second Circuit. “The judge in a limited Crosbyremand makes a finding of whether he would have imposed a materially different sentence (if he was sentencing in a post- Bookerworld) and, if he would have, he keeps the case and resentences, ” Mr. Kirby said. Under this approach, the Crosbyopinion also said the circuit would review for “plain error” by the sentencing court where the defendant had not raised an objection. (See News In Brief, page 1) But Judge Newman said, “Since Fagans objected, prior to sentencing, to the compulsory application of the Guidelines, he has preserved the error, and the procedure for applying plain error analysis that we set forth in Crosbyis inapplicable.” Judge Newman said the circuit could “simply reverse for the erroneous imposition of a sentence under the compulsory force of the Guidelines and remand for resentencing without any further adjudication.” “However, in the post- Booker sentencing regime,” he said, “a sentencing judge has to consider the several factors outlined in 18 U.S.C. �3553(a), normally including the applicable Guidelines range, id. �3553(a)(4)(A), before deciding whether to impose a Guidelines sentence or a non-Guidelines sentence.” Guideline Calculations There are many circumstances, Judge Newman said, where an “incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence, if one is imposed, but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference.” “If the issue concerning the correctness of a Guidelines calculation is difficult, an appellate court might understandably prefer not to resolve the issue upon an initial appeal of a pre- Booker” sentence, the judge wrote. On the other hand, he said, if the guidelines calculation is difficult, “it might often be preferable to adjudicate the calculation issue promptly so that subsequent sentencing proceedings will occur in light of the correct calculation,” a course that was preferable in the case of Mr. Fagans. Mr. Fagans enhancement for being in possession of a stolen firearm was correct under the guidelines and did not violate the Sixth Amendment, the judge said, and the increase in criminal history points because of Mr. Fagans’ prior crimes was proper because enhancements based on prior convictions have, according to the U.S. Supreme Court, never implicated the right to trial by jury in the Sixth Amendment. “Since the Guidelines calculation was correct, but the compulsory use of the Guidelines was erroneous and Fagans preserved his objection to that error, we remand to the District Court with instructions to vacate the sentence and resentence in conformity with Bookerand this opinion.” Judges Jose Cabranes and Rosemary Pooler joined in the opinion. John C. Mabie of Gale, Corum, Mabie & Cook in Brattleboro represented Mr. Fagans. Mr. Kirby and Assistant U.S. Attorney Gary G. Shattuck represented the government. � Mark Hamblett can be reached at [email protected] .

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