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The 2nd U.S. Circuit Court of Appeals 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 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 Fagans’ offense level and his criminal history category. Murtha did so because the 2nd 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. 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. In his review of the case law, Judge Jon O. Newman 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, the Booker ruling rendered his decision erroneous, Newman said. 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. 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 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, the Crosby opinion also said 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 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, 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 Fagans. 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 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 Booker and this opinion.” Judges Jose Cabranes and Rosemary Pooler joined in the opinion. John C. Mabie of Gale, Corum, Mabie & Cook in Brattleboro represented Fagans. Kirby and Assistant U.S. Attorney Gary G. Shattuck represented the government.

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