« Eighth Circuit speaks to post-Booker reliance on hearsay at sentencing | Main | Interesting sentencing developments in HealthSouth case »

December 9, 2005

Fifth Circuit officially rejects retroactive application of Booker

The Fifth Circuit has, through its decision in US v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005) (available here), joined circuit bandwagon in declaring that Booker is not to be applied retroactively.  Providing a thorough analysis of all the basic doctrinal issues (but not acknowledging any academic commentary to the contrary), the Gentry court ends its analysis with this concluding paragraph:

In In re Elwood, we held that Booker may not apply retroactively to cases on collateral review for purposes of a successive § 2255 motion. Elwood, 408 F.3d 211 (5th Cir. 2005).  Now, we join the several courts of appeals that have held that Booker does not apply retroactively to initial § 2255 motions. Because we hold that Booker does not apply retroactively to Gentry's motion, Appellant's motion fails.

A final footnote in Gentry cites to similar decisions from the 2d, 3d, 6th, 7th and 11th Circuits.  I also believe that the 4th, 8th, 9th and 10th Circuits have also formally rejected claims for Booker retroactivity.  I wonder how much longer we will have to wait for the last non-retroactivity shoes to drop from the 1st and DC Circuits.

December 9, 2005 at 03:37 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d8345cc31569e2

Listed below are links to weblogs that reference Fifth Circuit officially rejects retroactive application of Booker:

» On 'Doing Something Right' As a Law Blogger from ACSBlog: The Blog of the American Constitution Society
*Disclaimer: metablogging content ahead.* Prof. Eugene Volokh's draft of his remarks for the upcoming Harvard conference on blogging and legal scholarship reiterates the recent finding that the Sentencing Law and Policy Blog is cited far more frequentl... [Read More]

Tracked on Apr 24, 2006 11:33:15 PM

Comments

The 5th Cir. utterly dodges the main issue by failing to discuss whether the BARD standard enhances accuracy.

Posted by: anonymous | Dec 10, 2005 12:09:12 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB