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March 22, 2005

Lots and lots more Booker circuit action

This morning I noted here that the circuit were settling into their plain error patterns, and this afternoon brings a lot more of the same.  Indeed, today may set a record for Booker circuit decisions, and there are a few notable developments in some of these cases: 

  • From the First Circuit, no new Booker decisions, but the PRACDL Blog notes here that a Booker remand was ultimately ordered in Antonakopoulos, the case in which the Circuit adopted its tough plain error standard.

  • From the Second Circuit, another Crosby remand in US v. D`Oliveira, No. 04-2736 (2d Cir. Mar. 22, 2005) (available here).

  • From the Third Circuit, Booker remands in US v. Spivey, No. 04-2057 (3d Cir. Mar. 22, 2005) (available here) and US v. Simmons, No. 03-2013 (3d Cir. Mar. 22, 2005) (available here).  Spivey in interesting because it has the most express plain error discussion of any Third Circuit opinion, although the discussion is still opaque.

  • From the Sixth Circuit, today there were three Booker remands which are noted and linked in this post.

  • From the Seventh Circuit, another Paladino remand in US v. Re, No. 03-2089 (7th Cir. Mar. 22, 2005) (available here).

  • From the Eighth Circuit, a rote Booker remand in US v. Adams, No. 03-2138 (8th Cir. Mar. 22, 2005) (available here), a case in which the defendant had preserved his Sixth Amendment claim in the district court.

  • From the Eleventh Circuit, a Booker remand in US v. Garcia, No. 03-10350 (11th Cir. Mar. 22, 2005) (available here).  Garcia is interesting (and suspect?) because it remands without going through the Circuit's standard plain-error analysis in Rodriguez (though it is unclear whether the defendant's claim was deemed preserved).

March 22, 2005 at 05:11 PM | Permalink

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Comments

Garcia also is curious because the 11th Cir. apparently considered (and, in fact granted relief on, a Blakely/Booker issue raised for the first time in a supplemental brief, contrary to circuit precedent on appellate waiver. Not to mention that the Booker error it found reversible in Garcia (sentence above max authorized by jury's verdict) was different than the Booker error identified in Rodriguez (application of guidelines as mandatory).

Posted by: Unknown | Mar 22, 2005 8:56:10 PM

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