September 29, 2004

U.S. v. Savarese - First Circuit Applies Plain Error to Blakely Claim

In U.S. v. Savarese, No. 04-1099, 2004 U.S. App. LEXIS 19824 (1st Cir. September 22, 2004), a case involving the interpretation of section 2B3.1 of the U.S. Sentencing Guidelines, which provides for a two-level enhancement of a defendant's offense level if the defendant engaged in carjacking. -see U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003) - the defendant also raised a Blakely claim. While the decision is an issue of first impression on the USSG § 2B3.1(b)(5), and should ber read if for no other reason than that, we refer herein to the Court's handling of the Blakely claim.
[...] However, we conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.

The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese’s sentence for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); see also United States v. Cotton, 535 U.S. 625, 631 (2002) (holding that an Apprendi violation can be considered under plain error analysis); United States v. Duncan, ___ F.3d ___, ___, 2004 WL 1838020, at *2 (11th Cir. Aug. 18, 2004) (“[B]ecause Duncan failed to raise a Sixth Amendment argument below, our review is limited to determining whether setting the base offense level based upon the sentencing judge’s finding of cocaine base constitutes plain error in light of the Supreme Court’s holding in Blakely.”); United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (“Because Ameline did not object to his sentence on the grounds that the Sentencing Guidelines or the procedures used to determine the material sentencing facts were unconstitutional under Apprendi, or on the ground that the material sentencing facts were not alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt, we review for plain error.”); United States v. Donnelly, 370 F.3d 87, 92 (1st Cir. 2004) (reviewing a sentencing enhancement for plain error where the defendant failed to address the second element of the enhancement in his objection).

In determining whether an error is plain, the court considers four factors:

[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Cotton, 535 U.S. at 631-32 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)) (internal quotation marks, alterations, and citation omitted). We conclude that at least the last of these four requirements has not been satisfied.
One cannot fault the First Circuit, since it is abundantly clear that appellant never raised any objection to any of the facts underlying any of his Blakely claim on appeal.