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February 7, 2005

Another unpublished Booker doozy from the Sixth Circuit

With thanks to a reader for the tip and to Appellate Law & Practice for the story, I see that the Sixth Circuit is continuing a disconcerting trend of deciding consequential post-Booker cases through unpublished opinions.  (Prior examples of this trend are detailed here and here.)  Unpublished today we get US v. Hines, Nos. 03-6622 (6th Cir. Feb. 7, 2005) (available here), which vacates and remands a sentence based on Booker.

In Hines, the Sixth Circuit panel states that "[a]lthough the district court's factual findings [on the amount of drugs and use of weapons] are supported by the record, Hines is nonetheless entitled to re-sentencing under Booker."  The Court then proceeds through a cursory plain error analysis and relies heavily on the Fourth Circuit's Hughes decision to find the plain error standard met.  The Court finally asserts:

Remand is the only appropriate way, in this case, to allow the parties to argue for the exercise of the district court's discretion as authorized by Booker....  As appellate courts should review — and not determine — the decisions of the district court, we must vacate and remand for re-sentencing.

This ruling is stunning for a number of reasons, most particularly that the Hines panel does not even mention, let alone address, the two major (conflicting) rulings on plain error coming from the Sixth Circuit last week, Oliver and BruceOver at Appellate Law & Policy this post provides some more background on Hines (and this prior post has more on the Oliver and Bruce saga).

Though I am not inclined to tell others how to do their jobs, it strikes me that the scattered plain error decision-making might prompt the Sixth Circuit to order, sua sponte, en banc consideration of these cases.  As noted in this post, the Eighth Circuit is taking the en banc route (as detailed here) to address plain error.  Going en banc would allow all the Sixth Circuit judges to consider collective the important perspective issue that, as I suggested here, lies at the heart of divergent approaches to plain error.

February 7, 2005 at 01:02 PM | Permalink


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