Constitutional Booker error is not harmless where district court announced it would impose lower sentence if not bound by sentencing guidelines

SENTENCING United States v. Nash, No. 04-6288, ___ F.3d ___ (10th Cir. Apr. 9, 2007)(W.D. Oklahoma). Appeal of convictions and sentence for conspiracy to possess with intent to distribute cocaine and carrying a firearm during a drug trafficking crime in violation of 21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 924(c). HELD: Where district court applied sentencing guidelines as mandatory, court’s use of judge-found facts to enhance defendant’s sentence for drug quantity, recklessly creating substantial risk of death or serious bodily injury to another person in course of fleeing from law enforcement officers, and for committing perjury at trial was constitutional error under United States v. Booker, 543 U.S. 220 (2005). Furthermore, error was not harmless where district court announced in pre-Booker sentencing proceeding that if sentencing guidelines were later held unconstitutional, it would impose substantially lower sentence. Read the opinion here.