In today's opinion in U.S. v. Taylor, the Fifth Circuit dealt with a grant- vacate- and- remand from certiorari in light of Booker, and announces its basic rule-- that, given its refusal to hear Booker issues first-raised on rehearing, it was not going to hear them when first-raised on certiorari. The court also noted that, even on direct appeal, Taylor's claim would have failed on plain-error review because he did not show he owuld have had a lesser sentence under the new rule.
On direct appeal, Taylor had argued that it was error for the district court to find that he had committed perjury in his trial testimony and thus enhance his sentence for obstruction of justice. There is no hint in the direct appeal opinion of an argument that the district court violated the Sixth Amendment (or anything else) by making such findings.
In Taylor, the Fifth Circuit announced its opinion regarding the trial appeal a month or so before Blakely last summer. Ergo, Blakely was not an issue at sentencing or at appeal. [Except to the clairvoyant!] The Court announced Blakely, then the petition regarding Blakely was filed for Mr. Taylor.
Posted by: doug | May 18, 2005 at 06:57 PM