Major unpublished Booker circuit court rulings

Though I have already posted important Booker decisions from the Fourth Circuit, the Eighth Circuit and the Eleventh Circuit, I was surprised and a bit troubled to discover on-line a few consequential "unpublished" circuit court post-Booker dispositions.

From the Eighth Circuit, for example, the court in US v. Burgess, 2005 WL 124523 (8th Cir. Jan. 24, 2005), remands a pro se appellant's case for resentencing in light of Booker.  Given the circuit's ruling last week in Coffey (discussed here), I suppose this quick unpublished disposition is not a big deal.

But a very big deal seems to be unpublished rulings from the Sixth Circuit in US v. Davis, 2005 WL 130154 (6th Cir. Jan 21, 2005), and from the Ninth Circuit in US v. Tanner, 2005 U.S. App. LEXIS 1215 (9th Cir. Jan. 25, 2005).  I'll discuss the Ninth Circuit's ruling first, because it is a more peculiar and perhaps distressing.

In Ninth Circuit's ruling in Tanner: In this case, after the court summarily rejects various challenges to the defendant's conviction, the Ninth Circuit delivers this oblique paragraph addressing sentencing issues:

Tanner argues that the evidence failed to support the upward adjustment for his being an organizer or leader, but the judge obviously had plenty of evidence from the lengthy trial over which he had presided in addition to the presentence report, from which to draw this conclusion.  The government cross appeals on the downward departure, denial of an upward adjustment for obstruction of justice, and grouping decisions the district court made, and before United States v. Booker came down, this issue would have been difficult.  Now that the Sentencing Guidelines are merely guidelines channeling the reasonable exercise of the district court's discretion, we cannot say, in light of the district judge's careful consideration of both the guidelines and the individual circumstances of this case, that the sentencing decisions were unreasonable.

Because Tanner is unpublished and thus non-precedential, I suppose we need not spend a lot of time thinking through what the Ninth Circuit is saying directly or indirectly about the nature of post-Booker reasonableness review.  But this analysis seems much too cursory and a poor way to set out the Circuit's first words on Booker (even if they are "unpublished" words).

The Sixth Circuit's ruling in Davis: The outcome in this case is less concerning, but the unpublished status seems strange given that Davis includes some extended discussion of Booker, and of the nature of post-Booker sentencing and appellate review.  (The main pre-Booker sentencing issue in Davis case is legally complicated, as it concerns whether the district court had applied the right edition of the guidelines and whether any error was plain.) 

Because it is officially unpublished, Davis does not establish binding Sixth Circuit precedent, even though the decision seems to set out a few important circuit principles for post-Booker appellate review.  Particularly noteworthy in the Davis disposition is a footnote which states:

Defendant did not raise a Sixth Amendment challenge to the amount of loss calculation before the district court.... [But] Defendant filed updated citations to this Court prior to oral argument [and] both Defendant and the government debated the application of Blakely to the district court's amount of loss calculation at oral argument.  We are sufficiently satisfied that Defendant has preserved an objection to his sentence on Blakely grounds.