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04-3378 U.S. v. LaShay

By: dmc-admin//August 8, 2005//

04-3378 U.S. v. LaShay

By: dmc-admin//August 8, 2005//

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“In his opening brief, which he filed before United States v. Booker, 125 S. Ct. 738 (2005), LaShay argues that the district court’s use of the sentencing guidelines as a reference violated the Sixth Amendment. He contends that the court should have submitted the question whether he was an organizer or manager in the conspiracy to a sentencing jury. But this position is no longer tenable; Booker holds that application of the sentencing guidelines does not violate the Sixth Amendment so long as the district court treats them as advisory rather than mandatory. 125 S. Ct. at 750. The district court here made clear that it did not consider itself bound by the guidelines, but still found them to be a useful reference. Under those circumstances, LaShay had ‘no right to a jury determination of the facts that the judge deems relevant.’ Id.

“In his reply brief, however, LaShay for the first time argues that the district court erred when it failed to resolve the dispute over the applicable guideline range before sentencing him. Typically, arguments first raised in a reply brief are considered waived. Kelso v. Bayer Corp., 398 F.3d 640, 643 (7th Cir. 2005). But LaShay’s argument here is based on Booker, which was not decided until after his opening brief had already been filed, meaning he raised the argument as soon as it was reasonably available to him. Accordingly, we will review the district court’s sentence for harmless error, since LaShay raised a Blakely objection in the district court. United States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005).

“LaShay is correct that, though the guidelines are no longer mandatory, district courts still must consult them and take them into account when sentencing. United States v. Baretz, 411 F.3d 867 (7th Cir. 2005). The district court should have calculated the guideline range accurately and then explained any deviation it chose to make in LaShay’s case. United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). Here, the district court did not bother to calculate a range at all, but simply accepted the government’s sentencing recommendation. This was error. Id.”

Affirmed in part, and Vacated and Remanded in part.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.

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