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June 20, 2005

Not now or not ever on Booker plain error?

The Supreme Court's decision today to reject cert in the Rodriguez case from the Eleventh Circuit concerning Booker plain error (basics here, initial commentary here) has me wondering if the Supreme Court has decided to completely wash its hands of this issue or has just decided that it is not yet the right time (and perhaps that Rodriguez is not yet the right case) to take up Booker plain error.  (For more background, here are reports from the AP and Reuters about the Rodriguez case and the cert denial.)

Given that the SG asked for cert in Rodriguez, and that this issue gets less and less important over time as more cases move through the Booker pipeline, my initial reaction is that the Supreme Court just has no interest in taking up this issue at all.  But the Court will surely be getting lots and lots of cert petitions from defendants in the tougher plain error circuits, which will provide plenty of opportunities for the Court to take up this issue in some later case.  As noted by Lyle Denniston in this post, the Justice Department last week filed its own appeal plain error cert petition in the Sixth Circuit case of U.S. v. Barnett (04-1690), which I discussed here. In Barnett, the SG "recommended that the Court hold the case and dispose of it in light of the Court's action on the Rodriguez appeal. That, however, was before the Court took its surprise action on Monday, refusing to hear Rodriguez."

June 20, 2005 at 03:15 PM | Permalink

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» SCOTUS declines to clarify sentencing guidelines decision from Houston's Clear Thinkers
In a surprising development, the U.S. Supreme Court yesterday declined to clarify its its decision earlier this year in U.S. v. Booker (previous posts here), in which the Court struck down the mandatory nature of the federal criminal sentencing system.... [Read More]

Tracked on Jun 21, 2005 5:59:45 AM

» SCOTUS declines to clarify sentencing guidelines decision from Houston's Clear Thinkers
In a surprising development, the U.S. Supreme Court yesterday declined to clarify its its decision earlier this year in U.S. v. Booker (previous posts here), in which the Court struck down the mandatory nature of the federal criminal sentencing system.... [Read More]

Tracked on Jun 28, 2005 12:37:45 PM

Comments

I suspect that Scalia does not have a majority for his position that failure to submit an issue to the jury is structural error. . . or does not want to take that issue on in a context where success at the third Olano prong would merely shift denial of relief to the fourth prong. See Cotton. Before Booker, the Fifth Circuit (and perhaps others) was finding preserved Apprendi errors harmless due to overwhelming evidence. The Supreme Court did not grant cert, even though in Cotton it chose not to decide the prejudice prong of plain error review on the basis of overwhelming evidence.

Posted by: Robin Schulberg | Jun 20, 2005 4:16:12 PM

Maybe the Supreme Court is waiting until next term to deal with it, given a potential for a new justice. I do hope they deal with retroactivity.

Posted by: Malcolm Barnes | Jun 21, 2005 9:57:17 AM

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