In United States v. Padadino (read Prof. Berman's coverage here), the Seventh Circuit held that plain error would govern appeals brought under Booker.
Today a unanimous three-judge panel of the Seventh Circuit said, "Yes, we really meant it." United States v. Lee, No. 03 CR 478 (7th Cir., Feb. 28, 2004) (Easterbrook for Wood and Sykes, JJ.).
Because the sentence is at the statutory maximum, and the range under the Sentencing Guidelines is higher (the judge calculated 168 to 210 months), Lee does not contend that his sentence is improper under the Guidelines or any federal statute. But he does contend, relying on United States v. Booker, 125 S. Ct. 738 (2005), that the district judge violated the sixth amendment when making the findings that established the presumptive sentence. The 168 to 210 month range depended not only on the events that the jury necessarily found beyond a reasonable doubt, plus Lee’s older convictions (which need not be passed on by another jury, see Almendarez-Torres v. United States, 523 U.S. 224 (1998)), but also the district judge’s conclusions (on the preponderance standard) that Lee had obstructed justice by committing perjury at a pretrial suppression hearing, and that he had possessed the gun while committing two additional offenses (purchasing drugs and wearing body armor, which felons cannot do). Lee did not make any sixth amendment argument in the district court, however, so our review is for plain error. Booker, 125 S. Ct. at 769; Fed. R. Crim. P. 52(b).
Id. at *2.
The decision noted that: "This opinion was circulated before release to all active judges. See Circuit Rule 40(e). A majority did not favor a hearing en banc. Circuit Judges Ripple and Kanne voted to rehear the case en banc for the reasons stated in their dissents from the denial of rehearing en banc in Paladino."
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