THE LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890

Application of Booker and Fanfan to Minimum Mandatory Sentences

D. United States v. Booker
*6
On January 12, 2005, the Supreme Court announced its decision in United States v. Booker, 534 U.S. __, 2005 WL 50108 (2005). In its decision, the Supreme Court held that the Sentencing Guidelines are no longer mandatory, and that "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 2005 WL 50108, at *15. Though it is not yet clear what effect Booker will have on habeas petitions, the Court nevertheless will consider possible issues raised by Booker in the Petitioner's case.
During his plea, Petitioner allocuted to kilograms of cocaine and heroin. After further inquiry, Petitioner acknowledged that at least 5 kilograms of unspecified drugs were involved. (Trans. dated Apr. 22, 1996.) Because Petitioner did not specify an amount of either drug, despite what the Government claims in Paragraph 32 of the PSR, the Court will use 5 kilograms of cocaine to determine the proper Offense Level.
According to the Sentencing Guidelines, 5 kilograms of cocaine places Petitioner at an Offense Level of 32. Subtracting 3 levels for acceptance of responsibility brings Petitioner to a final Offense Level of 29. With a Criminal History Category of I and an Offense Level of 29, the appropriate sentence under the Sentencing Guidelines would be within the guideline range of 87-108 months. However, because Petitioner did not qualify for the safety valve, that amount of cocaine, by statute, imposes on him a mandatory minimum sentence of 10 years for the drug conspiracy charge. 21 U.S.C. 841(b)(1)(A). In addition, the firearm charge carries a statutory requirement of five years, consecutive to any other term of custody. 18 U.S.C. 924(c)(1).
Accordingly, because Petitioner's sentence was imposed based on statutory mandates, and not Sentencing Guideline enhancements, the holdings of Booker are of no avail to Petitioner.


Baez v. U.S.  L 106901, *5 -6  (S.D.N.Y.,2005)

THE LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890