Under Booker, strong disconnect between defendant's real offense conduct and conduct used as basis for sentence is reversible plain error

SENTENCING United States v. Clifton, No. 04-2046, ___ F.3d ___(10th Cir. Apr. 25, 2005)(New Mexico). Appeal of conviction and sentence for making false declarations before federal grand jury in violation of 18 U.S.C. § 1623(a). HELD: (1) Where district court judge stated he would impose lower sentence for perjury offense if not otherwise bound by sentencing guidelines, defendant demonstrated reasonable probability that but for non-constitutional Booker error (i.e., mandatory application of sentencing guidelines), result of her sentencing proceeding would have been different. Thus, under plain error analysis, Booker error affected defendant’s substantial rights. (2) Because defendant obtained cellular telephone for drug dealer and lied to grand jury about doing so, sentencing guidelines required district court to sentence her as if she was "accessory after the fact" to distribution of 1.4 kilograms of cocaine despite fact that no evidence was produced at trial indicating defendant knew anything about drug activities. By basing sentence on judge-found fact of drug quantity, sentence imposed more punishment than required for jury-found perjury facts. Thus, sentence violates Booker’s Sixth Amendment standard. Because of strong disconnect between sentence imposed (i.e., treating defendant as if she was accessory to cocaine distribution) and defendant’s real conduct (i.e., simple perjury), sentence does not reflect seriousness of offense. Therefore, under plain error analysis, not noticing error would produce miscarriage of justice. Read the opinion here.