US v. Portes, No. 05-1691. This is an Apprendi and Booker sentencing appeal which the defendant loses. Essentially, it comes down to a question of drug quantity. The jury wasn’t charged on quantity issues. The District Court conducted a hearing. This resulted in a higher statutory mandatory minimum. On plain error review the First says that because there was “overwhelming” and “uncontroverted” evidence of quantity this isn’t a problem.
Likewise, on plain Booker error review, the First says he couldn’t have done any better with a truly advisory system.
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