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Tenth Circuit Affirms Embezzlement Conviction over Booker Challenge

The defendant Verel Tracy Westover was convicted by a jury of violating 18 U.S.C. sec. 1001, by making false statements regarding matters within the jurisdiction of a federal agency, and 18 U.S.C. sec. 641, by embezzling government funds in conjunction with his receipt of public housing assistance and food stamps. Subsequent to the conviction, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and then United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which extended the Sixth Amendment holding of Blakely to the United States Sentencing Guidelines ("U.S.S.G.").   In Booker, the Supreme Court held that  "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."  Booker, 125 S.Ct. at 756.

In this case, while the Tenth Circuit agreed that the district judge had imposed a sentence which exceeded that supported by the facts found by the jury or admitted by the defendant, it nevertheless held that under the circumstances of this case and on plain error review, the defendant's sentence should be affirmed.

See the full text of the decision on Findlaw here.


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