CA11 will apply Booker when it must

Two cases from the Eleventh stand for the proposition that the Court will indeed give defendants the benefit of Booker when it absolutely must.

One was a revised opinion in US v Garcia. When the original opinion came out, I noted here that it looked as though the panel was perhaps being more generous about waiver/abandonment than some other panels have been. The new opinion, though, makes clear that the relevant defendant had made the Apprendi argument in the District Court, had made the same argument under Blakely in his initial appellate brief, and had then made the same argument under Booker when that decision arrived. So, the issue was perfectly preserved and had to be reached.

The other is an opinion on panel rehearing in US v Custer, vacating Custer's sentence under Booker because it contained enhancements based on non-jury findings, where (as with Garcia, above) he had raised the issue in the District Court and in his initial brief on appeal.

Comments

[Lynn Fant]

Although the revised opinion states that the initial brief raised an Apprendi type claim, my review of the brief available on line did not find a citation in the brief to the 6th Am, Apprendi, Blakely, etc. The argument was that the district court clearly erred in finding more than X # of marijuana plants. Has anyone else looked at this, and/or is there a different brief???