Judge-found drug quantity sentencing fact is noticeable plain error where guideline range is increased solely on basis of that finding

SENTENCING United States v. Bradford, No. 04-8039, ___ F.3d ___ (10th Cir. Sep. 14, 2005)(Wyoming). Appeal of conviction and sentence for possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). HELD: After United States v. Booker, 125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531 (2004), court of appeals analyzes facts used for sentencing purposes not only for support in record, but also for who determined those facts. If judge made factual findings increasing top of sentencing guideline range, rather than jury, or defendant’s pleading to them, sentence is unconstitutional. Accordingly, where defendant’s guideline sentencing range was increased based on judge-found fact that related offense conduct involved thirty grams of cocaine more than quantity pled to by defendant, and defendant objected to that additional quantity, although not expressly on Booker or Blakely grounds, error is noticeable plain error requiring remand for resentencing. Read the opinion here.