CA1: counterfeit vodka enhancement, presumptive guidelines, and Booker waiver

US v. Sagendorf, No. 05-1991.  After a conviction under 18 U.S.C. § 2320 for selling counterfeit "Stolichnaya" vodka.  In light of Booker, the government agreed to a voluntary remand, but the sentence imposed after the remand was just as it would have been before the guidelines.  The court concludes that the defendant waived any Booker argument because he simply abandoned and withdrew the issue.  The only issue left is whether the court, on re-sentencing considered the guidelines to be “presumptive” and therefore in conflict with United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006)’s “roadmap approach."  (Our coverage here.)  The First discusses  Jiménez-Beltre’s anti-presumptive language and  seems to concludes that 1) there was no presumption employed; and 2) it finds that the District Court’s explanation was plausible.  Anyway, the court gets on a soapbox and remarks that it is wrong to leave the guidelines simply because they “seem high” or would “recalibrate the guideline, and therefore, “...That principle is consistent with this court's later warning that, in the post-Booker world, "sentencing decisions must be done case by case and must be grounded in case-specific considerations, not in general disagreement with broad-based policies enunciated by Congress or the [Sentencing] Commission, as its agent." (citing United States v. Pho, 433 F.3d 53, 65 (1st Cir. 2006).)