BLAKELY OBJECTION SUFFICIENT TO PRESERVE BOOKER ARGUMENT

(Criminal) Today, January 3, the Fourth Circuit joins nine other circuits in holding that a sentencing objection based on Blakely v. Washington, 542 US 296 (2004) is sufficient to preserve an argument that a particular sentencing violated US v.Booker, 543 US 220 (2005). Today’s decision is US v. Rodriguez . Since the court finds that Rodriguez’s sentencing objection was sufficient, it analyzes his sentencing under a harmless error standard instead of the much more stringent plain error doctrine. As such, Rodriguez is sent back to the district court for resentencing for his conviction of illegal reentry by a deported alien.

(Arbitration) The court also affirms the dismissal of a challenge to arbitration proceedings in Dockser v. Schwartzberg . There, the plaintiff objected to the use of a three-arbitrator panel, arguing that a single arbitrator should decide the dispute (which arose in the context of something ironically titled, a “Definitive Settlement Agreement,” but which proved to be anything but definitive). Both the district court and the court of appeals conclude that this issue is particularly within the province of the arbitration process, and that the courts have no jurisdiction to adjudicate the number of arbitrators.

(Immigration) Finally, in Higuit v. Gonzales , the court rejects an asylum request by a Philippine national, on the basis that he is disqualified from seeking asylum. The applicant, who was facing removal (essentially, deportation) due to an expired visa, asked first an immigration judge and then the Board of Immigration Appeals to permit him to stay in the country. Both denied the request, citing a statute that denies such leniency to any alien who “ordered, incited, assisted, or otherwise participated in the persecution of any person . . .” Higuit formerly worked as an intelligence officer for the Philippines under dictator Ferdinand Marcos, and admitted that he had “hurt so many people” due to his loyalty to that government. The Fourth Circuit affirms this ruling today, finding that the judge and the BIA had the discretion to find that his exemplary conduct while in this country did not outweigh his actions across the Pacific.