Use of judge-found drug quantity sentencing facts in violation of U.S. v. Booker is not harmless error where evidence is not overwhelming

SENTENCING United States v. Small, No. 04-1188, ___ F.3d ___ (10th Cir. Sep. 15, 2005)(Colorado). Appeal of conviction and sentence for cocaine distribution conspiracy. HELD: (1) Where defendant was sentenced in middle of applicable sentencing guidelines range, but evidence relied on by judge to establish drug quantity sentencing facts was based on preponderance of evidence standard and not likely to have been found by jury beyond reasonable doubt, judge’s violation of United States v. Booker, 125 S. Ct. 738 (2005), was not harmless. (2) Plain error test requiring showing of effect on defendant’s substantial rights applies equally in context of harmless error. Under harmless error analysis, however, burden shifts to government to show defendant’s substantial rights have not been affected. Read the opinion here.