District court lacks discretion to withhold sentence adjustment for acceptance of responsiblity once facts supporting adjustment are found

SENTENCING United States v. Clark, No. 04-3116, ___ F.3d ___ (10th Cir. Jul. 29, 2005)(Kansas). Appeal of sentence for distributing more than five grams of mixture containing cocaine base in violation of 21 U.S.C. § 841(a)(1). HELD: (1) District court’s mandatory use of sentencing guidelines and judge-found sentence-enhancing facts constituted Sixth Amendment error as set out in United States v. Booker, 125 S.Ct. 738 (2005). Error was noticeable plain error because defendant met burden of showing that error affected her substantial rights as well as fairness, integrity, and public reputation of judicial proceedings. (2) Even in post-Booker regime where federal sentencing guidelines are not mandatory, once district court has found as matter of fact that defendant has accepted responsibility within meaning of U.S.S.G. § 3E1.1, district court has no discretion to withhold sentencing adjustment. Thus, when analyzing district court’s Booker error, maximum sentence that applies in absence of district court’s impermissible factfinding, is guideline range supported by facts defendant admitted reduced by his or her acceptance of responsibility. Read the opinion here.