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Name: People v. Buser
Case #: C048260
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/23/2005
Subsequent History: Revw. denied 11/30/05

Imposition of an upper-term sentence did not violate the defendant’s Sixth Amendment right to a jury trial. The court rejected defendant’s argument that the concurring opinion of Justice Thomas in Shepard v. United States (2005) 161 L.Ed. 205, suggesting that the holding in Almendarez-Torres v. United States (1998) 523 U.S. 224 ought to be reconsidered, compelled the Third District to find that the imposition of the upper term in this case violated the holding in Blakely v. Washington (2004) 542 U.S. 296, in spite of the recent decision to the contrary in People v. Black (2005) 35 Cal.4th 1238. The court noted that the United States Supreme Court expressly reaffirmed Almendarez-Torres in United States v. Booker (2005) 160 L.Ed.2d 621. Moreover, the court noted that the Sixth Amendment right to a jury trial as discussed in Shepard applies only to a disputed fact that is essential to increasing the ceiling of a potential sentence, and that the court in Black had found that the ceiling of a determinate term in California was the upper term, not the middle term, for purposes of this analysis.