CA1: No recall of a mandate for Booker

US v. Fraser, No. 04-1100, concludes that Booker, itself, is not a reason to recall a mandate “to permit a defendant to present arguments to this court that his sentence should be vacated and the case remanded for resentencing.”  However, this case probably isn’t too remarkable, as the court was treating a late motion for rehearing of the earlier decision (available here) as a motion to recall the mandate, and the court found that the “extraordinary circumstances” required to recall a mandate just were not there.  The court concludes “we have said there is nothing fundamentally unfair in the use of judge-made findings of fact. United States v. Antonakopolous, 399 F.3d 68, 75 (1st Cir. 2005).”