The Booker decision is long, repetitious and confusing, which makes it difficult to comprehend, even by people who teach law--- so says law professor Alan Dershowitz. However, I found that Booker is an easy decision to comprehend if you keep in mind what it did while you are reading it. Here is what it did:

1. Booker re-affirmed the earlier decision in Blakely v. Washington, 542 U.S. ____(2005), That the Sixth Amendment does apply to the Sentencing Guidelines. This means that any fact (except of prior conviction) that the judge relies on to establish your sentencing range under the Guidelines must have been found by the jury or admitted by you (in the case of a guilty plea). For example, if your indictment charges you with distributing at least 50 grams of crack, and you are later convicted but the judge finds by the preponderance of the evidence at sentencing that you actually sold 566 grams of crack, your sentence would be illegal under Booker. Similarly, if you received any upward adjustments under the Guidelines for role in offense or for specific offense characteristics (i.e., possessing a gun during the offense, obstructing of justice, using juveniles to distribute drugs, being a leader, etc.) and such determinations were not specifically reflected in the jury's verdict (or admitted by you), your sentence would be illegal under Booker.

2. Booker abrogated 18 U.S.C. Section 3553(b) as being unconstitutional. Section 3553(b) required federal judges to apply the guidelines. The effect of Booker is that judges no longer have to follow the guidelines. If you were convicted of selling 2 kilograms of crack pre-Booker, you likely faced a guideline range of 235 months to life (Offense Level 38). Post-Booker, the judge can ignore the guidelines and sentence you to 10 years, the mandatory minimum term. Moreover, if you are a career offender under Section 4B1.1 of the Guidelines, the judge now has the discretion to sentence you well below the harsh terms that the guidelines formerly require for career offenders. This is the most significant aspect of Booker's holding. (See Booker, at 2005 WL 50108, *14 (U.S.))

3. Booker also abborgated 18 U.S.C. Section 3742(e), which precluded an appeal of a sentence by a defendant that was within his/her guideline range. Thus, even if your sentence was at the bottom of your guideline range, you can now appeal on the grounds that the judge failed to consider other factors that justified a lower sentence.

Now that you have an understanding of what Booker did, I will now move on to how you can make Booker work for you:

1. If you are waiting to be sentenced of if you have already been sentenced and your direct appeal is still pending; you are in the best possible position to take advantage of the Booker ruling because it applies automatically in either instance.
2. B. If you raised a Blakely/Booker type argument on your direct appeal and it was rejected, you can re-litigate your claim in an initial motion under 28 U.S.C. Section 2255, on the grounds that Booker constitutes an intervening change in the law. See Davis v. United States, 417 U.S. 333 (1974). If you did not raise a Booker type argument in your direct appeal, you are barred by the retroactivity rule announced in Schriro v. Summerlin, 124 S.Ct. 2519 (2004), from raising a Booker challenge in your initial Section 2255 motion. Remember, you only have 1 year from the date your appeal became final to file an initial Section 2255 motion in this instance. If you have already filed a Section 2255 motion and it has been resolved, you are absolutely barred from filing a successive Section 2255 motion based on Booker. See Tyler v. Cain, 533 U.S. 656 (2001).
3. C. If you raised a Booker type challenge on direct appeal several years ago and are currently time-barred from filing a section 2255 motion, you can possibly re-litigate your Booker challenge by filing a Motion to Recall the Mandate in the Circuit Court of Appeals that rejected your appeal. A motion to recall the mandate can be granted where a subsequently decided Supreme Court decision shows that the Appeals' Court judgment is wrong. See U.S. v. Skandier, 125 F3d. 178, 182 (3d. Cir. 1997) (granting motion to recall the mandate where subsequent Supreme Court decision showed that the Third Circuit's decision in that case was wrong).
4. D. If you are barred from filing a motion under Section 2255 and if a motion to recall the mandate was unsuccessful your next option would be to file a motion for reduction of sentence under 18 U.S.C. Section 3582(c)(2). Section 3582(c)(2) gives the district court the discretion to reduce a sentence whenever a guideline range has been subsequently lowered by the Sentencing Commission. Since booker has struck down the "mandatory application" of the Guidelines, all the guideline ranges have been "subsequently lowered" by virtue of the Booker decision. Section 3553(b)'s requirement that the judge only consider "the sentencing guidelines, policy statements and official commentary of the Sentencing Commission" was eliminated by Booker.

   In my opinion, Section 3582(c)(2) allows you to request a reduction in your sentence on the ground that Booker lowered your guideline range by allowing the duge the discretion to impose a lower sentence without regard to the "now advisory" guideline range. If you have obtained certificates, have completed any educational/vocational training programs, or have other mitigating circumstances that would justify a reduction in your sentence, you should include these references in the body of your motion for reduction of sentence. Particularly helpful would be any statements by your judge at sentencing that the sentence is severe but that he was bound by the Guidelines.

   By invoking Section 3582(c)(2), you avoid the retroactivity "trap" laid in Schriro v. Summerlin, supra. Section 3582(c)(2) does not trigger the habeas provisions of the Anti-terrorism and Effective Death Penalty Act or Schriro v. Summerlin's retroactivity trap. Keep in mind that under Section 3582(c)(2), the judge is not required to reduce your sentence. You are simply at the mercy of the court. If you had a judge who was opposed to the Guidelines, you have a decent shot. If you had a hanging judge…expect the worse but try it anyway.

5. E. If neither A, B, C or D squarely fits your situation; you have to be creative in finding a way to get yourself back before the court for re-sentencing. One way is to find some flaw in the manner in which the judge imposed your fine and or restitution order. A challenge to a fine or restitution order must be made under 28 U.S.C. Section 2241, for which there is no time bar. If you find a flaw in the fine or restitution order, the judge will have to impose an amended judgment. When he does, you can raise a Booker challenge to your guideline sentence at that time. Whenever a defendant is back before a judge for re-sentencing, he can raise any challenges to the sentence that could have been raised at the initial sentencing.

   Another way to find yourself back before the court is to find a "jurisdictional error" in your case. Jurisdictional errors can never be waived and can be challenged at anytime. For example of a jurisdictional error read Harris v. United States, 149 F3d. 1304 (11th Cir. 1998)

Your only limits are the size of your ideas and the degree of your dedication.
Never surrender.
Peace.

To order these books send check (institutional or certified) or money order to Hampstead Publishing P.O. BOX 33 Keasbey, NJ 08832 or log on to: www.hampsteadpub.com