Constitutional Booker error and guidelines calculation error constitute plain error sufficient to require resentencing

SENTENCING United States v. Johnson, No. 03-3340, ___ F.3d ___ (10th Cir. Jul. 14, 2005)(Kansas). Appeal of sentence for multiple drug trafficking offenses in violation of 21 U.S.C. §§ 841(a)(1), 846, 856(a)(1), and 18 U.S.C. § 2. HELD: Combination of constitutional Booker error (i.e., use of judge-found sentencing fact) and guideline calculation error (i.e., adjustment of criminal history based on erroneous determination that defendant was on parole for another offense at time of instant offense) constitutes plain error sufficient to require remand for resentencing. Read the opinion here.