Monday, January 31st, 2005

A Foley Square “Time Warp”? A Post-Booker Guidelines Decision.

United States v. Sash, No. 04-0499 (2d Cir. Jan. 26, 2005) (Walker, Miner, and Cabranes) (Op. by Miner).

In this opinion, issued two weeks after the Supreme Court’s decision in Booker (see entry below), the Second Circuit engages in a detailed analysis of Section 2B1.1(b)(9)(C)(ii) of the Guidelines, which calls for a 2-level enhancement when the offense “involved . . . the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification.” The Court rejected the defendant’s argument that his conduct — replicating police badges for police officers — did not trigger the enhancement because it did not involve true identify theft, holding that the plain language of the Guideline controlled.

What’s interesting about the opinion is not what it discusses, but what it doesn’t discuss — namely, Booker (or even Blakely). The original sentencing occurred in January 2004, but surely the defense attorney made a Blakely-based argument at some point during the appellate process. In any event, the January 26, 2005, opinion is entirely silent as to Blakely and Booker — it doesn’t even include a boilerplate referencing Chief Judge Walker’s August 6, 2004, order regarding Blakely.

In any event, this opinion demonstrates one potentially great benefit of Booker: Hopefully, in the post-Booker era, none of us will have to sift through such mind-numbing, and entirely pointless, Guidelines minutia again. Of course, the correct Guideline range must first be calculated, even under Booker. But it’s very hard to imagine that either advocates or courts will spend so much energy on — or have the patience for — parsing ambiguous Guidelines language when, ultimately, the range is just advisory anyway.

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