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February 22, 2005

Plain error Booker circuit review

With the First Circuit joining the plain error fun with it decision today in Antonakopoulos (basics here), I think we now officially have at least half of the circuits officially weighing in concerning the application of plain error to pipeline cases in which the defendant did not raise a Blakely/Booker issue at sentencing.  Though these rulings cannot be easily summarized, I will try in very short space to provide a run down of where plain error stands, circuit-by-circuit:

1st: Antonakopoulos provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.

2nd: Crosby provides for remands for reconsideration so district court can speak to prejudice.

3rd: No direct consideration of issue but a distinct pattern of remands.

4th: Hughes provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants.

5th: Silent.

6th: Oliver (which now rules the roost) provides for a more liberal plain error standard which seems likely to be satisfied by most defendants.

7th: Silent.

8th: Silent, but an en banc consideration is in the works.

9th: Ameline provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants.  (Government's en banc motion pending.)

10th: Silent, but an en banc consideration is in the works.

11th: Rodriguez provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.

DC: Silent.

I am doing this mostly from memory, so I may have missed something that I trust commentors will fix.  Also, I am certain that this summary review glosses over many nuances in all the holdings.

February 22, 2005 at 06:42 PM | Permalink

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» CA 11 today (2/25) from Appellate Law
One case today, and lo and behold, the defendant succeeds in demonstrating plain Booker error even under the Eleventh Circuit's standard, which is (under cases such as yesterday's Duncan) stricter than many other circuits'. [Read More]

Tracked on Feb 25, 2005 8:35:01 PM

» CA 11 today (2/25) from Appellate Law
One case today, and lo and behold, the defendant succeeds in demonstrating plain Booker error even under the Eleventh Circuit's standard, which is (under cases such as yesterday's Duncan) stricter than many other circuits'. [Read More]

Tracked on Feb 25, 2005 8:38:14 PM

Comments

I must say that I admire the stamina of the judges in Circuits like the Eleventh and First, who seem to relish the thought of poring over hundreds of briefs and presentence reports in the Booker appeals pending before them to evaluate the likelhood of prejudice in each. Their appetite for this work is particularly praiseworthy since they could so easily avoid it by the expedient of inquiring of the District Court, which surely knows whether there was prejudice, whether or not there was any. Only the Second Circuit has been such a group of slackers as to make inquiry of the district judge in order to settle the prejudice question. Good to see that our hard-working federal judges in other parts of the country have staunchly stepped up to the task of deciding those Booker cases without sluffing them off on the district court, even if the district court could answer the prejudice question far more efficiently than they could.

Posted by: David in NY | Feb 23, 2005 10:11:52 AM

David:

Exactly the point I was going to make. I was wondering if these other circuit judges would have been as willing to take on all that extra work if it made it more (rather than less) likely that resentencings would occur.

It would be overly cynical to suggest that their plain-error analysis was result driven, so I guess I have to trust that it's nothing more than a reasonable disagreement on how it should apply.

Posted by: Alex E. | Feb 23, 2005 1:32:41 PM

For what its worth, I believe the 7th Circuit should be coming out with sometihng soon. I know the calendar for this week (and I think last week as well) was all criminal cases. At our oral argument today (2-25-05), Judge Posner said to my boss (and I'm paraphrasing) "Um, do you have anything to argue besides Booker?" So after 2 weeks, I think they have heard it all. I'm thinking the grilling they gave the AUSA was to break the Booker monotony.

Posted by: Eric | Feb 25, 2005 5:33:10 PM

It would be overly cynical to suggest that their plain-error analysis was result driven


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