Another notable Booker harmless error ruling from 11th Circuit

The Eleventh Circuit has been tough on defendants claiming plain error when a Booker error was not preserved.  But, as evidenced by its Glover ruling last month, the Eleventh Circuit has been more defendant-friendly when a Booker error was preserved and the government claims the error is harmless.  This trend continues with the Circuit's ruling today in US v. Cain, No. 04-15754 (11th Cir. Dec. 29, 2005) (available here).

In Cain, the Court is able to cover a lot of Booker pipeline basics in the course of refusing to find a Booker error harmless based solely on a sentence at the top of an applicable guidelines range.  Here is the introduction:

James Hubert Cain appeals his conviction and 41-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The issue of first impression we address is whether a district court's constitutional error under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is harmless beyond a reasonable doubt where the district court (1) sentences the defendant to the maximum Guidelines range but (2) provides no indication of whether its sentence would have been the same or higher in an advisory Guidelines system. We affirm Cain's conviction, but we vacate his sentence and remand for resentencing consistent with Booker.