Mandate rule does not bar Blakely-Booker objections at resentencing

SENTENCING United States v. Lang, No. 04-4165, ___ F.3d ___(10th Cir. Apr. 12, 2005)(Utah). Appeal of sentence on Blakely and Booker grounds where sentence being appealed was imposed in resentencing hearing resulting from district court’s erroneous downward departure. HELD: (1) Defendant was not barred by mandate rule from raising Blakely objection during remanded sentencing proceeding that was result of district court’s erroneous downward departure. Supreme Court’s Blakely and subsequent Booker decisions constitute such dramatic change in law that they present type of exceptional circumstance permitting district court to expand resentencing beyond sentencing error causing reversal. (2) Because district court erroneously enhanced defendant’s sentence in violation of Blakely and Booker through use of judicial factfinding, and because defendant properly objected on Blakely-Booker grounds, error is evaluated using harmless error standard. Under harmless error analysis, government must prove error was harmless beyond reasonable doubt. Where government does not even assert error was harmless, government fails to meet its burden and case must be remanded for resentencing. Read the opinion here.