US v. Pizarro, No. 05-2283, holds that
- it was not error to refuse to allow a defendant to withdraw his plea even though there were some undisclosed written accounts of his confession that was given to the pre-sentence report writer (whose disclosure might have been required by Fed. R. Crim. P. 16 or Brady) as there was no reason given why knowing this stuff would have caused him not to plead guilty;
- the court denies a Booker remand, because all he could argue (only on appeal ) was that his sixth amendment rights were violated because the judge used facts not found by the jury; but almost
- remands for re-sentencing because the District Court apparently attributed the losses charged to him simply because he plead guilty to a conspiracy – and just because someone undertakes a criminal activity does not mean that he is responsible for all of the losses – nevertheless, after reviewing the record on the law, finds that it wasn’t clear error, because of the record that indicates that the defendant knew what he was doing; but
- upon confession of error notes remands because the District Court seems to have said that the sentences would run concurrently with state terms, and then says that they would run consecutively
Finally, the court notes that a USSG § 2B1.1(b)(3) (physical theft) enhancement probably should not have been applied at all because this was a fraud case, but it wasn’t clear error – but defense counsel did such a bad job that this was probably ineffective assistance, and on habeas, the court should appoint counsel.