US v. Montero-Diaz, No. 05-1496 (unpublished) rejects the argument that in a post-Booker sentence pursuant to a guilty plea (with no plea agreement)
- In an Anders brief, the defendant raised the same issue in United States v. Carrasco-Mateo, 389 F.3d 239 (1 Cir. 2004), cert. denied, __ U.S. __, 125 S. Ct. 1721(2005) regrading factual findings.
- In a pro se brief, the defendant argued that Booker is an ex post facto law. This obviously got nowhere. But, interestingly the defendant raised a non-delegation challenge to the Federal Sentencing Commission. This, to me, is more interesting, but the First notes that the Supreme Court stood by Mistretta.” I don’t think that the issue is so simple, since the commission has changed in makeup, and at least one judge has speculated that the commission might now be improperly constituted. See United States v. Detwiler, CR 03-372-PA (D. Or. Oct. 5, 2004) (and SL&P's coverage here).
- Likewise, a plea to overlook Almendarez-Torres, fails.
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