Due process requires the prosecution to prove beyond a reasonable doubt, and the jury to determine the existence of, a sentencing factor that operates to increase the penalty above the statutory maximum sentence.[317]  This rule, however, only applies where the factual determination increases the maximum penalty beyond the statutory range authorized by the jury's verdict — it does not apply to factors that increase the statutory minimum sentence or otherwise increase the penalty imposed within the statutory maximum.  Apprendi error may invalidate the sentence as a whole if the maximum was raised by the improperly found factor.[318]

[317] Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001) (declaring sentencing scheme of 21 U.S.C. § § 841(b)(1)(A) and (B) facially unconstitutional since it permits the judge to find a fact, the quantity of drugs, under the preponderance of the evidence standard, that increases the maximum penalty to which a defendant is exposed).

[318] United States v. Thomas, 355 F.3d 1191 (9th Cir. January 26, 2004) (federal sentence in controlled substances case vacated and remanded, since guilty plea did not encompass the quantity allegation in the indictment, and the defendant neither admitted possessing more than 50 grams of cocaine base during his plea colloquy, nor knowingly waived his right to have a jury determine the question of quantity beyond a reasonable doubt).

POST CON RELIEF -- SENTENCE -- BOOKER REVERSAL OF CALIFORNIA DETERMINATE SENTENCING LAW
Cunningham v. California, ___ U.S. ___ (Jan. 22, 2007) (California's determinate sentencing law violates defendant's right to trial by jury under Sixth and Fourteenth Amendments by placing sentence-elevating factfinding within the judge's province). http://laws.lp.findlaw.com/us/000/056551.html

SENTENCING - FAILURE TO SUBMIT FACTOR TO JURY IS NOT STRUCTURAL ERROR
Washington v. Recuendo, __ U.S. __ (Jun. 27, 2006) (failure to submit firearm enhancement to jury, in violation of Blakely v. Washington, 541 U.S. 296 (2004), is not structural error requiring reversal without showing of prejudice).

Note: Justice Stevens, in dissent, points out that the majority did not reach the issue whether Blakely errors are structural because they deprive defendants of sufficient notice regarding the charges they must defend against. So that argument is still available.

POST CON RELIEF - SENTENCE - GROUNDS OF INVALIDITY - IMPOSITION OF GREATER SENTENCE BASED ON FACTS BEYOND THOSE ADMITTED DURING PLEA OR FOUND DURING TRIAL
Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant "statutory maximum" is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).      If, as in Washington State, a statute establishes a maximum possible sentence for violation of the statute, but that maximum may not be reached solely upon a finding that the basic elements of the offense have been committed, but rather can only be reached upon a finding of additional factors, the "statutory maximum" for the offense for Apprendi purposes is not the absolute maximum, but only the maximum the judge can imposed absent a finding of the additional factors. To impose up to the absolute maximum sentence, the additional factors must be established by a jury, or admitted by the defendant in a guilty plea.      In the immigration context, this may limit the legacy INSs ability to establish that a given crime has "maximum possible sentence" is a sentence of which a certain period "may be imposed." See, e.g. INA 212(a)(2)(A)(ii)(II) (petty offense exception where maximum possible does not exceed one year); INA 237(a)(2)(A)(i) (crime of moral turpitude where sentence of one year or more may be imposed); INA 101(a)(43)(J), (Q), (T).      Where this case is applied in the future, however, where additional factors have been found by the jury, or admitted by the defendant, the record of conviction that may be examined by an Immigration Judge in determining whether a conviction falls within a ground of removal will likely contain additional factual information with which the legacy INS can prove its case.

GROUNDS - SENTENCE - REQUIREMENT THAT JURY, NOT JUDGE, FIND EXISTENCE OF AGGRAVATING FACTORS IS NOT RETROACTIVE
Schriro v. Summerlin, 124 S.Ct. 2519 (June 24, 2004) (the rule of Ring v. Arizona, 536 U.S. 548 (2002), requiring the jury, rather than a judge, to find the existence of an aggravating factor, does not apply retroactively to cases already final on direct review, because it was not a "watershed rule of criminal procedure.").
http://laws.lp.findlaw.com/us/000/03-526.html

Second Circuit

POST CON RELIEF " FEDERAL " SENTENCE " SENTENCE ENHANCED FOR PRIOR CONVICTION VACATED FOR NONCOMPLIANCE WITH 21 U.S.C. 851
United States v. Espinal, ___ F.3d ___, 2011 WL 768021 (2d Cir. Mar. 7, 2011) (district court's failure to meticulously follow the specific, multistep procedure under 21 U.S.C. 851 before an enhanced sentence can be imposed based on a prior felony drug conviction prejudiced defendant, and required vacating the sentence and remanding for resentencing).

Third Circuit

BOOKER - WITHDRAW OF GUILTY PLEA
United States v. Remoi, __ F.3d __, 2005 WL 845884 (3d Cir. April 13, 2005) (Supreme Court decision in Booker constitutes a "fair and just" reason to withdraw any plea that was entered before the date of that decision).

Ninth Circuit

POST CON RELIEF - SENTENCE - GROUNDS -- BOOKER
United States v. Mercado, ___ F.3d ___, 2007 WL 136702 (9th Cir. Jan. 22, 2007) (Booker has not abrogated previous rule allowing sentencing courts to consider conduct underlying acquitted criminal charges). http://caselaw.lp.findlaw.com/data2/circs/9th/0550624p.pdf

POST CON -- SENTENCE - GROUNDS -- FEDERAL -- BLAKELY -- DEFENDANT'S ADMISSIONS CAN BE THE BASIS FOR SENTENCE ENHANCEMENT
United States v. Labrada-Bustamante 428 F.3d 1252 (9th Cir. Nov. 10, 2005) (neither Apprendi nor Blakely is violated when court's determination of drug quantity for sentencing was based on defendant's own testimony: "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington (2004) 124 S.Ct. 2531, 2537).

IMMIGRATION OFFENSES - ALIEN SMUGGLING - SENTENCE - BOOKER CRIMINAL LAW & PROCEDURE, SENTENCING
United States v. Gonzales-Flores, __ F.3d __ (9th Cir. Aug. 12, 2005) (sentence for alien smuggling remanded where sentence was enhanced under a mandatory-guideline regime based on facts not admitted nor proved to a jury beyond a reasonable doubt).
http://caselaw.lp.findlaw.com/data2/circs/9th/0310656p.pdf

POST CON - GROUNDS - SENTENCE - VIOLATION OF JURY TRIAL RIGHT TO ENHANCE SENTENCE ON BASIS OF FACTS NOT CHARGED AND ADMITTED OR FOUND TRUE BY JURY
United States v. Ameline, ___ F.3d ___ (9th Cir. July 21, 2004) (court of appeals vacated federal sentence because district court violated defendant's right to have facts underlying his sentence found beyond a reasonable doubt under Blakely, holding federal sentencing guidelines unconstitutional).
http://caselaw.lp.findlaw.com/data2/circs/9th/0230326p.pdf

POST CON RELIEF - GROUNDS - CONVICTION - SENTENCE - VALIDITY - RIGHT TO JURY DETERMINATION OF FACT INCREASING MINIMUM SENTENCE - GUILTY PLEA DOES NOT ADMIT QUANTITY
United States v. Thomas, ___ F.3d ___ (9th Cir. Jan. 26, 2004) (guilty plea which did not admit drug quantity could not be used to set minimum sentence on basis of possession of more than 50 grams; due process requirement that the drug quantity be pleaded in the indictment, submitted to a jury, and proved beyond a reasonable doubt, does not transform drug quantity into an element of the offense that a defendant necessarily admits when pleading guilty).

Tenth Circuit

BOOKER ILLEGAL REENTRY REMAND
United States v. Trujillo-Terrazas, __ F.3d __, 2005 WL 846230 (10th Cir. April 13, 2005) (sentence of 41 months imprisonment for illegal reentry found to be plain error in light of Blakely and Booker).

ILLEGAL REENTRY - SENTENCE - BOOKER
United States v. Gonzales-Huerta, __ F.3d __, 2005 WL 807008 (10th Cir. April 8, 2005) (plain error not found where district court, in relied solely on defendant's prior convictions or on facts that he admitted, and imposed what it regarded as mandatory punishment at lowest end of Sentencing Guidelines range).

Eleventh Circuit

ILLEGAL REENTRY - SENTENCING - BOOKER
United States v. Orduno-Mireles, __ F.3d __, 2005 WL 768134 (11th Cir. April 6, 2005) (for illegal reentry sentencing purposes, fact of prior conviction is not a fact that must be admitted by defendant or proven before a jury beyond a reasonable doubt; Apprendi exception for recidivist enhancements makes Blakely and Booker in applicable enhancement for prior aggravated felony conviction).

Other

POST CON - GROUNDS - SENTENCE - BLAKELY
For useful updates on the extensive litigation after the Blakely decision of the United States Supreme Court, see http://blakelyblog.blogspot.com/2004/07/tuesday-morning-news.html http://sentencing.typepad.com/ http://www.legalaffairs.org/howappealing/2004_07_01_appellateblog_archive.html#109092599628736116