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February 11, 2005

A 3d Circuit (unpublished) Booker remand

A reader just pointed me to the Third Circuit's recent unpublished decision in US v. Mortimer, No. 03-4174 (3d Cir. Feb. 10, 2005) (available here), which I believe is the first decision from that court remanding a case for resentencing in light of Booker. The decision does not discuss plain error at all, though that doctrine is arguably applicable on the facts.  The Mortimer court, after reviewing the Booker holding, simply states:

The Supreme Court also held that the Booker decision applies to all cases on direct review, and remanded the cases involved in Booker for resentencing. Id. at 769.  Accordingly, Booker applies to the case before us.  Having determined that the sentencing issues Mortimer raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in light of Booker.

The reader who spotlighted Mortimer, though recognizing such an unpublished disposition is "not precedential," nonetheless expressed hope that the decision suggests that a "forthcoming Third Circuit decision will recommend that all pending direct appeals raising legitimate Booker issues be remanded for resentencing."

February 11, 2005 at 04:23 PM | Permalink


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