Frye: Booker challenge waived in appeal waiver

In U.S. v. Frye, No. 03-16377 (March 11, 2005), the Court vacated in part its prior published opinion in Frye dated February 10, 2005. The Court deleted the portion of its prior opinion which had rejected Frye’s Blakely challenge to his sentence on the ground that the sentencing court could have inferred the facts supporting the sentence from the facts admitted at Frye’s guilty plea. [Note: As Richard Klugh noted in an earlier email, this portion of the original Frye opinion had become problematic in light of the Supreme Court’s recent indication in Shepherd v. U.S. that a sentencing court does not enjoy unlimited power to draw inferences about the factual basis for a conviction]. In its place, the Court inserted a discussion holding that the defendant’s waiver of his right of appeal encompassed a waiver of his right to challenge his sentence on Booker grounds. This waiver foreclosed Frye’s challenge to his sentence.