February 9, 2005
The Sixth Circuit fun continues as it publishes Davis
Maintaining its status as the Circuit most fun to watch in the developing Booker battles, the Sixth Circuit today decided to "re-designate" its decision from three weeks ago in US v. Davis, 2005 WL 130154 (6th Cir. Jan 21, 2005) (available here) to add this notable footnote:
This decision was originally issued as an "unpublished decision" filed on January 21, 2005. The court has now designated the opinion as one recommended for full-text publication.
I previously discussed the Sixth Circuit's work in Davis here (along with the Ninth Circuit's Tanner decision, which has as detailed here also been changed). Though I suppose I should praise the Sixth Circuit for bring Davis into the published light, the opinion itself is still a bit opaque on the law.
The Davis case involves some plain error analysis layered on top of complicated ex post facto issues even before the Court turns to Booker matters. And once turning to Booker, the Davis decision now follows the Sixth Circuit's Oliver ruling on plain error and then drops this remarkable footnote:
One day after the panel in Oliver filed its opinion, a different panel of this Court filed United States v. Bruce, — F.3d —, 2005 WL 241254 (6th Cir. Feb. 3, 2005). To the extent Bruce conflicts with Oliver, we note that we must follow Oliver because it was decided first. See 6TH CIR. R. 206(c).
And as a final item of legal fun, Judge Cook felt compelled to add a concurrence which provides:
I write separately only to note that Booker does not forbid all judicial fact-finding in sentencing, as a reader of the majority’s opinion here might infer.... After Booker, of course, the guidelines are merely advisory. Thus, post-Booker, judges may enhance sentences based upon facts not found by the jury, provided they do not consider themselves required to do so. With this clarification, I concur.
February 9, 2005 at 11:42 AM | Permalink
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