US v. Jones, No. 05-1541 (unpublished) vacates and remands for re-sentencing. Essentially:
Jones argues — and the government concedes — that the sentence should be vacated and the case remanded for resentencing because, among other things, the district court deviated from the [guidelines] based on unexpected grounds and without giving any advance notice.
As astute readers of this blog may know, the government recently changed its position on this issue. But, the First seems to insist on analyzing the issue, and concluding that because of the timing of the sentencing and Booker, “the case falls into a peculiar time warp.” Also, the Distirct Court seems to have “mis-recollected” what it said at the sentencing hearing, and United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006) (our coverage here) "clarified" how sentencing should proceed under the advisory guidelines.
The court also notes the issue of whether "the running of the two components of the sentence consecutively constituted a departure rather than a variance and, if not, whether the advance notice requirement of Burns v. United States, 501 U.S. 129, 131 (1991), and Fed. R. Crim. P. 32(h) should apply by analogy to deviations from the advisory guidelines (as opposed to departures)” is, as of now, unresolved."