Puerto Rico Association of Criminal Defense Lawyers

Peter Goldberger on Dodd and Filing 2255 with Blakely/Booker Claims

On Monday the Supreme Court decided Dodd v. United States, No. 04-5286 (June 20, 2005) holding that the 1 year limitations period under 2255(3) "begins to run on the date on which this Court 'initially recognized' the right asserted in an applicant's motion, not the date on which that right was made retroactive"

Peter Godlberger, through a post at BOPWatch as well as his comment at Sentencing Law and Policy here, has alerted to the importance of Dodd to persons whose sentences became final before Blakely v. Washington was decided on June 24, 2004. I'm reproducing here Peter's comments at Sentencing Law and Policy:

Dodd has major and immediate implications for the AEDPA statute of limitations on Blakely/Booker claims. I would emphasize that the "newly recognized right" in question was more likely announced in Blakely than in Booker, so the year is more likely (under Dodd) to run from the date of Blakely than from the date of Booker next January. Honestly, it's hard to see how Booker announced any "new right" at all (although many circuits have more or less said it did, for purposes of analyzing retroactivity under Teague v Lane, a related but not necessarily identical question, even in the cockamamie sense that the expression "new rule" is used for Teague v Lane purposes); what was *new* in Booker was the *remedy* not the "right" or the "rule," IMHO. Be that as it may, the only sensible advice at this point, it seems to me, for any federal prisoner whose conviction became final more than a year ago and whose sentence might be mitigated if Booker were applied to him/her, and who has not previously filed a 2255 motion, is to file a 2255 on or before 6/24/05 - [three] days from now! The motion doesn't have to be in polished form, just to get something in. For a pro se prisoner, depositing it in the prison legal mailbox counts as filing, if the motion says that's what the prisoner is going to do. It can be amended to comply with formal requirements, at least (I'm leaving wiggle room here for how Mayle may come out). In all likelihood, the courts aren't going to hold the Apprendi/Ring/Blakely/Booker "rule" retroactive no matter when you file, but just in case there's no reason to blow the statute of limitations unnecessarily, too.
-- Peter Goldberger, Ardmore, PA

So you have been warned now.

US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005)

In what has to be one of the more interesting post-Booker opinions, Chief Judge Holmes of the Northern District of Oklahoma who, post-Blakely, gave us US v. O’Daniel, 328 F. Supp. 2d 1168 (N.D. Okla. 2004) (see this post), and US v. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004) (see this post), has now entered an Order in US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005) in which it would appear he is flaunting the Booker remedial majority's solution of advisory guidelines by going for a system in which the guidelines will be mandatory but one in which the Sixth Amendment rights will be respected. It is interesting reading. 

Peter Goldberger on Booker/Fanfan

You can read Peter Goldberger's take on Booker/Fanfan in this post at White Collar Crime Prof Blog. Peter is an NACDL member and an outstanding appellate attorney and, he was on the brief in NACDL's amicus curiae merits brief in Booker & Fanfan. Also read the comments to the post, some written by Peter, and one written by T. Chris Kelly, counsel for Booker before the Supreme Court.

PRACDL Members in CJA Committee and Comité para Revisar el Manual de Instruciones al Jurado

The District of Puerto Rico's Criminal Justice Act Committee counts with six practicing criminal defense lawyers, and five of these are proud members of PRACDL:

• Jorge L. Arroyo, PRACDL immediate past-President
• Hector Deliz, PRACDL member
• Joseph C. Laws, Jr., Federal Public Defender and PRACDL Board member
• Miriam Ramos-Grateroles, former PRACDL Board member
• Francisco Rebollo-Casalduc, PRACDL member

Any of these PRACDL members can assist you with CJA related matters. Another invaluable resource is Marlene Mortera, at the Clerk's Office, who does such a great job of scrutinizing and moving along towards payment all our CJA Vouchers.  To describe the manner in which Marlene handles the job from the lawyer's view can be done in just one word: outstanding.

We have also leaned that PRACDL Members Harry Anduze and Francisco Rebollo-Casalduc have been appointed to serve on the Commonwealth of Puerto Rico Supreme Court's Committee to Revise the Jury Instructions Manual. Congratulations to both!  Don't forget Blakely!

Practitioners' Advisory Group Proposal to USSC Makes the Most Sense

As we wait for the Supreme Court to decide Booker & Fanfan, we have competing proposals before the US Sentencing Commission. At the one end, is the idea of starting from a clean slate, an unlikely event.  At the other extreme is the idea of nullifying any decision applying Blakely to the federal guidelines, initially proposed by Professor Bowman in his submission to the Senate Judiciary Committee back in July, and now having apparently become DOJ's darling - to move the top of each offense level to the statutory maximum and thereby make ashes of Blakely's holding, ... maybe.

The best proposal we have seen thus far comes from the Practitioners' Advisory Group, and it is a worthy read in that it is rather comprehensive and specific. One may argue about various aspects of this proposal, but it is the best we have seen to date.

Professor Bowman now says that his so-called "topless" proposal was only meant as an interim fix. It was a lousy idea then and it is a lousy idea now. It shows too much worry about possible windfalls to some defendants, forgetting the obvious: that the government has been receiving windfalls since November 1987 as a result of draconian guidelines, each day more and more in the control of the prosecutors.

There certainly are more options being offered, but we focus on these as the two primary market forces: one to skirt Blakely altogether; the other to have guidelines that give life to the Sixth Amendment right to jury trial and proof beyond a reasonable doubt.

Download practitioners_advisory_group_11.04.04 proposal.pdf

First Circuit's Leadership Role in Blakely Strikeouts

As noted by Professor Douglas Berman at Sentencing Law & Policy here, with the opinion in United States v. Fraser, 2004 WL 2537410, No. 04-1100 (1st Cir. Nov. 10, 2004), the First Circuit maintained its status "as a leader in affirming convictions over Blakely objections on plain error grounds." No liberals at the First!* The Circuit Judges, who share the Courthouse with the Judges from the District of Massachusetts, must wonder at times whether they are from a different planet.

See also our previous post: Is Pedro Martinez pitching at the First Circuit?

* I hope none of the Circuit Judges takes offense at missing out on being labeled with the "L" word.

Is Pedro Martinez pitching at the First Circuit?

The First Circuit is throwing out left and right all Blakely claims raised for the first time on appeal by applying plain error and even discussing whether the claims have been waived rather than forfeited by not having been raised earlier. Feels as if Pedro Martinez were pitching for the First Circuit.

On Monday, November 1st, 2004 the Circuit issued three opinions dealing blows to appellants' Blakely claims. See United States v. Del Rosario, No. 02-2377 (1st Cir. Nov. 1, 2004), United States v. Martinez-Bermudez, No. 02-2419 (1st Cir. Nov. 1, 2004), and United States v. Stearns, No. 03-2340 (1st Cir. Nov. 1, 2004).

And today another Blakely claim struck out in United States v. Coyne, No. 03-2013 (1st Cir. Nov. 4, 2004) (not for publication).

This is certainly not Ameline-land.

7th Circuit is Afraid of the Briar Patch?

In United States v. LaGiglio, No. 04-2934 (7th Cir. Oct. 8, 2004), an appeal by the government, and an opinion by Judge Posner (who wrote the Booker majority opinion),

[a] jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U.S.C. § 371, an offense for which the federal sentencing guidelines prescribe a base offense level of 10; but, consistent with the guidelines, the judge increased LaGiglio’s offense level by a total of 11 because of the amount of the government’s tax loss and LaGiglio’s use of sophisticated means to commit the crime, and sentenced her to 41 months in prison.

The level 10 translated into a sentence of 12 months, and defendant had already served that much. She had requested that she be released pending her appeal, and the district court had denied her request. She then requested that the 7th Circuit order her released. The Circuit remanded the case to the district court in light of Blakely and Booker, and the district court ordered her released. It is from that decision that the government then appealed. Because the district court

did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

(emphasis added). I have never understood why the 7th Circuit had to leave the decision whether the proper route was to convene sentencing juries, or whether to use the guidelines at all to the district courts, and this obviously inlcudes the issue of severability which they passed over in Booker. The answers could and should have come from the 7th Circuit in Booker and they did not, instead passing it up to the Supreme Court and/or the lower courts. Is the 7th Circuit afraid of the briar patch?

U.S. v. Perez, Crim. No. 04-86-P-H (D.Me. October 5, 2004) - Judge D. Brock Hornby

In a recently issued Procedural Order in U.S. v. Ramon Perez, Crim. No. 04-86-P-H,(D.Me. October 5, 2004), U.S. District Judge D. Brock Hornby, refused to accept a defendant's guilty plea when defendant, through counsel, informed that he wanted to plead guilty to the conspiracy charge, "but wanted a jury trial as to the drug quantities and on the scope of the conspiracy. [n.2]" We quote practically the totality of the opinion, since we find it deals with day-to-day problems confronting each one of us practicing before the U.S. District Courts.

The Superseding Indictment charges this defendant with being a member of a conspiracy [n.1] involving at least five kilograms of cocaine. That quantity activates the section of the narcotics statute with the highest statutory drug sentencing category, 21 U.S.C. § 841(b)(1)(A). In a “Sentencing Allegation,” the Superseding Indictment also charges that this defendant is “accountable for at least 15 kilograms of cocaine.” That quantity increases the United States Sentencing Guideline (“Guideline”) sentencing range and is also designed to comply with the First Circuit’s requirement in United States v. Colon-Solis that in a drug conspiracy case, “any sentence imposed must be accompanied by particularized findings as to the drug amounts attributable to, or foreseeable by, the appellant.” 354 F.3d 101, 104 (1st Cir. 2004).

Judge Hornby goes on to discuss  the pre-Apprendi situation, and compares it with the post-Apprendi  world, and then the still uncertain post-Blakely world.

Before Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing judge determined the applicable drug quantities (and thereby the statutory maximum and minimum penalty and the guideline range) whether a conviction was by a jury or by a guilty plea. In other words, before Apprendi I could probably have accepted a partial plea somewhat along the lines the defendant proposes, but I as the judge would have made the determinations about drug quantity and its impact on the sentence.

After Apprendi, in cases that went to trial, the judge submitted the question of conspiracy drug quantity to the jury (to determine beyond a reasonable doubt). The jury’s answer determined the applicable statutory maximum. United States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003). But the judge still determined (on his/her own and by a preponderance of the evidence) the drug quantity pertinent to the individual defendant and thus the applicability of any mandatory minimum sentence and the governing guideline range (within the statutory maximum). See id. For defendants who pleaded guilty, the sentencing judge alone determined all those issues, except the statutory cap, which was controlled by what the Indictment or Information charged. See United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002). Although Apprendi resulted in verdict questions to juries about drug quantity, such questions generally were asked only if the jury had found guilt on the underlying offense. I have been unable to find any case where a defendant was permitted to plead guilty and then proceed to jury trial on drug quantity alone. [My Comment: Don't Booker (7th Cir.) and Ameline (9th Cir.) carry any weight here? Both Courts left open the possibility of sentencing juries.]

As a result of Blakely v. Washington, 124 S. Ct. 2531 (2004), the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences. Just yesterday the United States Supreme Court heard oral argument in a case from this District, United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-105), and another from the Seventh Circuit, United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-104). Everyone hopes that early Supreme Court decisions in these two cases will clear up the confusion engendered by Blakely. In the meantime, however, this defendant has said through counsel that he does not want to await the Supreme Court rulings before proceeding. Because he is entitled to proceed without delay, see 18 U.S.C. § 3161, I must determine what procedure to follow in light of Blakely. I have been unable to find any cases directly on point. I therefore work from basic principles.

Since “[a]n indictment must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the “elements” of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government’s objection, accept a plea to a lesser included offense. United States v. Edmonson, 792 F.2d 1492, 1498 (9th Cir. 1986). The defendant here says that pleading guilty to conspiracy covers the “elements” in this case. I do not believe that “scope” of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. [n. 3] Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996). Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. See, e.g., United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002). In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become “elements of the offense”? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an “element” seems to have lost significance. [n. 4] It certainly does not help resolve the issue before me. [n.5] Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. [n.6] The appellate cases generally have said that defendants cannot stipulate their way out of the government’s right to try a case the way it was charged. See Old Chief v. United States, 519 U.S. 172, 186-87, 190-92 (reiterating standard rule, but holding that the defendant’s legal status as a felon is different and that the government can be compelled to accept such a stipulation). This background counsels in favor of sustaining the government’s objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I [n.7] conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. [n.8] True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). “A court may reject a plea in exercise of sound judicial discretion.” Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

[n. 1] A conspiracy to possess and possess with intent to distribute.

[n. 2] This is specifically not a case where the defendant is willing to plead guilty to the offense and stipulate that the judge may determine the relevant sentencing facts, a possibility suggested by Blakely v. Washington, 124 S. Ct. 2531, 2541 (2004). The defendant also wants to go to trial on venue, but a guilty plea would waive his right to jury trial on venue. See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001). Since I am rejecting the plea of guilty, however, the defendant may continue to press his venue challenge at trial.

[n.3] The Superseding Indictment does not allege any particular scope for the conspiracy beyond the quantity allegations. Presumably the defendant knows what the government will state in its prosecution version for a factual basis for the plea at any Rule 11 proceeding and is unwilling to agree to the government’s version.

[n.4] As recently as Jones v. United States, 526 U.S. 227, 232 (1999), the Court said: “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”

[n.5] The debate creates certain ironies. The government takes the position that sentence - enhancing factors are not “elements” because nationally the government has argued that Blakely does not apply to federal sentencing. But it wants me not to accept the partial plea, an argument that would be easier to make by calling them elements that the defendant must admit to in order to plead guilty. The government has carefully refrained from doing so. The defendant faces the same dilemma in reverse.

[n.6] It will also save only minimal court time at best.

[n.7] Blakely does not seem to restrict the judge’s role in downward adjustments of the Guideline range such as 3E1.1 permits.

[n.8] It is already too late to get the third point under 3E1.1(b) because of the late stage of the proceedings (the jury has been empaneled).

Now that the argument as to whether a particular fact that enhances the guideline offense level is an element, a sentencing factor, or Mary Jane, is irrelevant, as we are dealing at worst with functional equivalents of elements of aggravated offenses as we go up the offense level, we should all be insisting that with indictments that charge merely "in excess of 5 kilograms" but offer no specific amount, the indictments are insufficient as a matter of law to submit the issue to the jury beyond the 5 kilograms, i.e., that any higher amount had to be specifically alleged, since we are no longer dealing with the post-Apprendi and pre-Blakely situation in which the sole concern was whether the indictment charged and the jury found an amount to trigger a maximum of 20 or 40 years or life. Instead each offense level in the drug quantity table is an, if you will, aggravated version of the lower offense, and had to be specifically charged. Just some food for thought. Any comments will be greatly appreciated.

If you want a copy of the PDF file, please e-mail PRACDL at our new e-mail address link at sidebar. We hope to soon be moving to a sytem where we can actually upload all our own PDF's files and where we can actually categorize them. Until then, please be patient.

More Blakely Plain Error Analysis by 1st Cir. in U.S. v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004)

The First Circuit keeps fidgeting with Almendarez-Torres. In United States v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004) the First Circuit also handled a Blakely claim which involved the continuing vitality of Almendarez-Torres.

Having plead guilty to a one count information, Cordoza-Estrada was convicted of re-entering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced to eighteen months of imprisonment and three years of supervised release.

He appealed his sentence, arguing that his prior conviction for a simple assault was a misdemeanor under New Hampshire law and should not have been treated as an “aggravated felony” under § 1326(b)(2) or U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(C) (Nov. 2002). He also argued that his sentence was invalid under Blakely v. Washington, 124 S.Ct. 2531 (2004).

Moving on to the Blakely claim,

The day before oral argument, Appellant filed a letter pursuant to Local Rule 28(j) arguing that the sentence was unlawful on the ground that Blakely v. Washington, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), undermine the Supreme Court’s ruling in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that the prior “aggravated felony” language of 8 U.S.C. § 1326(b)(2) refers to a sentencing enhancement, not to an element of the offense. The letter also advocated that Appellant should be resentenced because post-Blakely, the Federal Guidelines are merely advisory.

Since Appellant’s argument depends upon a decision that did not exist at the time of briefing, a 28(j) letter is a perfectly appropriate avenue by which to present it –- such letters are intended to provide the court with new authority. See Freeman v. Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (accepting Rule 28(j) letter making new arguments where they could not have been made before and the relevant statute permitted court to order new evidence taken at any time). The Government does not argue that the issue was raised in an untimely manner and has filed a Rule 28(j) letter in response.

The parties agree that the standard is plain error. Under the plain error test, an appellant “‘bears the burden of demonstrating (1) an error, (2) that is plain, (3) that affects substantial rights (i.e., the error was not harmless), and (4) that seriously undermines the fairness, integrity, and public reputation of judicial proceedings.’” United States v. McCormack, 371 F.3d 22, 29 (1st Cir. 2004) (quoting United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 48 (1st Cir. 2004)).

In Apprendi, the Supreme Court stated: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). Blakely did not disturb the distinction between “the fact of a prior conviction” and other facts that “increase the penalty for a crime beyond a prescribed maximum.” Blakely, 124 S. Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge’s consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction. See United States v. Cotton, 535 U.S. 625, 632 (2002) (in a review of an Apprendi error, holding that the “third inquiry usually means that the error must have affected the outcome of the district court’s proceedings”).

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was “plain.” Compare United States v. Duncan, __ F.3d __, 2004 WL 1838020, at *3-*5 (11th Cir. August 18, 2004) (holding that any Blakely error was not “plain” under the plain error standard of review) with United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (holding the contrary).

In determining whether the error was plain, the Supreme Court has explained: “Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.”

Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. See, e.g., United States v. Booker, 375 F.3d 508 (7th Cir. 2004) (Posner, J.) (holding the Guidelines unconstitutional) (Easterbrook, J., dissenting), cert. granted, ___ S. Ct. ___, 2004 WL 1713654; United States v. Hammoud, ___ F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8, 2004) (en banc) (upholding the Guidelines) (Wilkinson, J., Shedd, J., Widener, J., concurring; Motz, J., Michael, J., Gregory, J., dissenting); United States v. Koch, ___ F.3d ___, 2004 WL 1899930 (6th Cir. Aug. 26, 2004) (en banc) (upholding the Guidelines) (Martin, J., Daughtrey, J., Moore, J., Cole, J., Clay, J., dissenting). Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal. Because the trial judge’s sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.

Affirmed.

So what exactly does it take to get past the Frist Circuit, other than a writ of certiorari?