Second Circuit Mentions Split Re: Sentencing Enhancement; Declines to Decide

Per United States v. Blackburn, 461 F.3d 259 (2nd Cir. July 26, 2006):

Blackburn's sole argument on appeal is that the district court erred in imposing a four-level sentencing enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2K2.1(b)(5). Because Blackburn has completed his prison sentence and we are convinced that a favorable decision on appeal would yield no "effectual relief," United States v. Quattrone, 402 F.3d 304, 308 (2d Cir.2005), we conclude that the case is moot and dismiss it for lack of jurisdiction without reaching the merits of Blackburn's claim. At sentencing, the district court acknowledged that there is a split among the circuits that have considered the applicability of the enhancement in similar factual circumstances and that this Court has not addressed the issue.

Under the post-Booker sentencing regime, district courts have a "continuing duty to consider [the Guidelines], along with the other factors listed in [18 U.S.C. § ] 3553(a)," United States v. Crosby, 397 F.3d 103, 111 (2d Cir.2005) (internal quotation marks omitted). The Courts of Appeals likewise have a continuing duty to review the district courts' application of sentencing enhancements. See United States v. Agudelo, 414 F.3d 345, 347 (2d Cir.2005). The sentencing issue raised here is an important one, over which there is a split of authority among the circuits. The importance of the issue, however, and the temptation to decide it can have no bearing on our assessment of its justiciability. Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 213 (2000).