USA v. Florentino, 03-1067, is a Booker GVR. (See the First’s first opinion here.) Judge Dyk of the Federal Circuit writes it. The Booker argument was not preserved, and the First finds that he doesn’t that he would have benefited to get a remand under the plain error standard. The defendant had argued that under a Booker regime, the court would have considered the fact that his bother, a co-conspirator got a lesser sentence, but both the District Courts and the First Circuit point out that the defendant was a career criminal. Two passages (regarding waived arguments) are also noteworthy:
Florentino says that his brother received a departure because as a deportable alien he was held in harsher conditions than usual. But this is not a consideration that was forbidden or discouraged by the guidelines. … If the circumstance is true as to Florentino, it could have been argued at the original sentencing.
Florentino also says that the district judge misapprehended his argument about the use of the disputed conviction and thought he was arguing that the conviction should not be used at all. Florentino claims to have been arguing that the conviction should have been used only as an upward adjustment to his criminal history level.
But the First says that he didn’t develop that argument, either.