Actual sentence, not sentencing range, must be increased by judge-found fact to violate Booker rule

SENTENCING United States v. Yazzie, No. 04-2152, ___ F.3d ___ (10th Cir. May 20, 2005)(New Mexico)(en banc). Appeal of conviction and sentence for sexually assaulting person under age of twelve in violation of 18 U.S.C. § 2241(c) and 18 U.S.C. § 1153(a). HELD: (1) Sufficiency-of-evidence objection to judge-found sentence-enhancing fact insufficient to preserve claim of Booker error for appellate review. Accordingly, where defendant only objected to sufficiency of evidence supporting judge-found sentencing fact that victim was in his care and custody, defendant’s claim of Booker error is not properly preserved and is reviewed for plain error only. (2) Under Booker, actual sentence, not sentencing range, must be increased upon judge-found fact in order to violate Sixth Amendment. In this instance, while guideline sentencing range without judge-found fact would have been 108-135 months, because defendant received 135 month sentence even with judge-found fact, actual sentence was within range that could have been imposed without using any judicially determined fact. Therefore, there was no constitutional Booker error. (3) Treating federal sentencing guidelines as mandatory, regardless of whether defendant is sentenced under 18 U.S.C. § 3553(b)(1) or § 3553(b)(2) is error. Because 18 U.S.C. § 3553(b)(2) requires mandatory application of federal sentencing guidelines in cases involving sex offenses against minors through use of same "shall impose" language that made guidelines mandatory under § 3553(b)(1), reasoning used by Supreme Court in Booker to save guidelines from Sixth Amendment infirmity by excising § 3553(b)(1) also applies to § 3553(b)(2). Accordingly, § 3553(b)(2) must be excised. Read the opinion here.