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The 2d U.S. Circuit Court of Appeals continues to sort out the review and remand of cases under the U.S. Supreme Court decision U.S. v. Booker, 125 S. Ct. 738, striking down a key aspect of the Federal Sentencing Guidelines. U.S. v. Fagans, No. 04-4845-cr. Giving further guidance to the bench and bar on sentences found to violate the Sixth Amendment right to a jury trial under the high court’s January ruling, the 2d Circuit clarified one circumstance under which a full resentencing hearing must be conducted. The court found that defendants are allowed full resentencing hearings where their sentences were enhanced in violation of the Sixth Amendment and they preserved their objection on the issue. Andrew Fagans was arrested after breaking into 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. Judge Garvan Murtha of the Vermont district court adopted the probation department’s guidelines calculation, which included enhancements for both Fagans’ offense level and his criminal history. Murtha did so because the 2d Circuit-while waiting for the high court to rule on mandatory sentencing enhancements in Booker-told its courts that the guidelines were still good law until ruled otherwise. Fagans preserved his right to appeal by making, and then renewing, his constitutional objections to the enhancements. Murtha sentenced him to 24 months in prison. Judge Jon O. Newman, on behalf of the panel, said Booker excised the requirement that the guidelines be applied in a compulsory manner, and that Fagans’ case was affected by Booker because it was on direct review when the Supreme Court announced the decision. So while Murtha was correctly following the circuit’s lead in applying the guidelines, Booker rendered his decision erroneous. The circuit followed Booker by 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. According to Vermont U.S. Attorney David V. Kirby, who briefed the Fagans case for the 2nd Circuit, “The judge in a limited Crosby remand makes a finding of whether he would have imposed a materially different sentence (if he was sentencing in a post- Booker world) and, if he would have, he keeps the case and resentences,” Kirby said. Under this approach, Crosby holds that the circuit would review for “plain error” by the sentencing court where the defendant had not raised an objection. But 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 Crosby is inapplicable.” Newman went on, “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. On the other hand, 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.” 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 enhancement because of 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,” the 2d Circuit remanded to the district court to resentence in conformity with Booker and this opinion.

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