Mandatory use of sentencing guidelines by sentencing judge is not harmless error

SENTENCING United States v. Labastida-Segura, No. 04-1311, ___ F.3d ___(10th Cir. Feb. 4, 2005)(Colorado). HELD: Where defendant stipulated to offense conduct as well as prior felony conviction in plea agreement, no Sixth Amendment violation occurred at defendant's sentencing because all operative sentencing facts were admitted. However, because defendant preserved challenge to sentence based on Blakely v. Washington, 124 S.Ct. 2531 (2004), and reserved right to appeal on that issue, fact that sentence was imposed by judge erroneously believing that sentencing guidelines were mandatory is reviewed for harmless error. In light of Supreme Court's recent holding in United States v. Booker, 125 S.Ct. 738 (2005), that sentencing guidelines are advisory, and in light of fact that judge sentenced defendant to term of imprisonment near bottom of guidelines range, court of appeals cannot conclude error was harmless because there is no way for court of appeals to determine if judge would have exercised discretion and given same sentence. Remanded for resentencing. Read the opinion here.