If defendant is beneficiary of non-constitutional Booker error, defendant bears burden of showing error was harmless
SENTENCING United States v. Montgomery, No. 04-4193, ___ F.3d ___ (10th Cir. Mar. 10, 2006)(Utah). Government appeal of defendant’s sentence for possession of firearms and ammunition by convicted felon in violation of 18 U.S.C. § 922(g)(1). HELD: Where defendant is beneficiary of district court’s non-constitutional Booker error at sentencing, defendant bears burden of showing on appeal that error was harmless. Thus, defendant failed to show that district court’s error in applying sentencing guidelines as mandatory was not harmless where record clearly indicated district court would have imposed higher sentence if it believed it had discretion to do so. Read the opinion here. |
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