U.S. v. Vázquez-Rivera, No. 02-1818, affirms a conviction under 21 U.S.C. § 846 (conspiracy to possess cocaine and heroin with intent to distribute), but remands for resentencing. There are some procedural issues, and I put those at the end. However, the sentencing issues are the most interesting.
While a Booker argument was specifically raised in the defendant’s appeal, the court addressed it because...
In the instant case, the parties' briefs were submitted prior to a substantial change in the applicable law wrought by the Supreme Court's decisions in Blakely and Booker. This change constitutes an "exceptional circumstance" in which we will permit new issues to be raised, and we accordingly accepted supplemental briefing from both sides.
The court then describes the Booker waiver procedure as such (citations ommitted, emphasis added):
The burden of proving that the preserved Booker error did not affect the defendant's substantial rights lies with the government. The standard of proof, however, depends on whether the error is conceived of as constitutional. Since we have described the Booker error as the mandatory application of the Guidelines, and since under an advisory Guidelines regime a judge may make findings of fact without falling afoul of the Constitution, one might surmise that Booker error is not constitutional error. This conclusion would be incorrect in the instant case, where a mandatory Guidelines sentence was imposed on the basis of judge-found facts. Mandatory application of the Guidelines in such a case violates the defendant's Sixth Amendment rights. Because the defendant was "denied a federal constitutional right," the government has the burden of proving beyond a reasonable doubt that the error did not affect the defendant's substantial rights. That is, we must be convinced that a lower sentence would not have been imposed had the Guidelines been advisory. This is an extremely difficult, but not impossible, standard to meet. While the government, in light of the difficulty of meeting its burden, has on occasion conceded to remand for Booker error, it has not done so here.
The court then concludes that the government’s failure to meet its burden of showing that the Booker error was harmless. The court then remands for resentencing.
As to what happened at the trial.... The court holds that it was not plain error to allow the case agent to give “vouching testimony” by explaining the “safety valve” procedure found in 18 U.S.C. § 3553(f)(5), and therefore the agent “... was not, as defendant suggests, stating that the witness told the truth at the safety valve hearing, although that is its purpose.” Nor did the prosecutor “vouch” for anything during closing arguments” because the AUSA was just countering the assertion of the defendant’s counsel, and “We typically cede prosecutors some latitude in responding to defense counsel's allegations of fabrication.” Next, the court found that because the parties had agreed that some murders could be mentioned, it was not improper to use the murders in way the prosecutor wanted (even if it would otherwise be admissible, I think). Likewise, the prosecutor didn’t improperly inflame the jury by saying "[w]ho has the most interest in the outcome of this case? [Defendant], who takes the stand and tells you, ladies and gentlemen, that [Soto's] dad asked him to go visit him in jail so he can talk to him."
So I'm to gather that the 1st circuit has said "no" to the plain error analysis applied in the 5th and 11th circuits (and elsewhere)?
The allocation of the burden of proof is also interesting...
Posted by: TomFreeland | May 18, 2005 at 06:01 PM