United States v. Rodriguez

“At the outset, it is important to understand that there are two different types of Booker error: "there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on  facts not admitted by the defendant or proved to a jury beyond a reasonable doubt," and there is "a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory." Douglas A. Berman, Sorting through the Circuit circus, Sentencing Law and Policy, at http://sentencing.typepad.com/sentencing_law_and_policy/
2005/02/sorting_through.html (Feb. 14, 2005). "Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory . . . ." Id.”
United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (Tjoflat, J., dissenting)

     

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