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February 7, 2005

Unpublished summary Booker remands in the 9th Circuit

The Ninth Circuit has today, through a set of unpublished dispositions that can be accessed here, vacated and remanded for resentencing four cases based on Booker.  Rather than give full cites for all these ("not for publication") cases, here are just the short-hand names of the defendants with links: Reynolds, Seibert, Stewart, and McCoun

Because these dispositions do not provide any procedural history (indeed, McCoun is a single sentence), it is hard to surmise whether these dispositions include a de facto judgment about the plain error issues that are now roiling other circuits.  (Background here and here.) 

Of course, by being unpublished, these Ninth Circuit dispositions "may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3," and thus their meaning is not formally important as a matter of precedent.  But, as we all try to make sense of the post-Booker realities, these summary remands seem noteworthy.  (Also noteworthy, it seems from the top of this page that the Ninth Circuit might have done something today in the Tanner case previously discussed here, but the link is not working for me.)

February 7, 2005 at 03:11 PM | Permalink


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In Tanner, they altered their opinion so as to remand the case to the district court for resentencing.

Posted by: Laura | Feb 7, 2005 7:35:49 PM

Thanks, Laura. The link now seems to work here:

Here's is the text of the revised order:
On page 5 of the memorandum disposition, replace the paragraph beginning “Tanner argues that” with the following:
Because the Supreme Court’s decision in United States v. Booker changes the context in which district judges impose sentences, review of this sentence imposed under pre-Booker law is unnecessary. We remand so that the district judge can determine whether the change in the law would make a difference in the sentencing in this case. If the district judge determines that it does, he may vacate the sentence and resentence Tanner.
On page 6, replace “AFFIRMED.” with the following: AFFIRMED IN PART AND REMANDED.

Posted by: Doug B. | Feb 7, 2005 8:34:36 PM

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