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February 3, 2005

An intra-circuit split in the 6th Circuit on plain error!

I am in Milwaukee and being treated with wonderful hospitality despite the having called my locale the land of Laverne & Shirley last night in this post.  Part of that hospitality has included a chance to see a new great opinion in a case called Galvez-Barrios from Milwaukee's own Judge Adelman (of Ranum fame, basics here), which I hope to be able to post later today.

But first, there is what seems to be an amazing development from the Sixth Circuit: an intra-circuit split on the analysis of plain error.  Recall that a panel of the Sixth Circuit yesterday in Oliver (discussed here) issued a bold plain error ruling which distinguished the Supreme Court's Cotton decision and suggested that the court would have to remand for resentencing in pre-Booker cases involving unlawful judicial fact-finding "even if we conclude that the evidence is 'overwhelming and essentially uncontroverted'."   

But now I see that a distinct panel of the Sixth Circuit has ruled today in US v. Bruce, 03-3110 (6th Cir. Feb. 3, 2005) (available here) that there was no plain error in pre-Booker case by relying on Cotton and coming to the conclusion that "the evidentiary support for the district court’s findings on these [guideline enhancing facts are] sufficiently 'overwhelming' to defeat any claim that these findings 'seriously affected the fairness, integrity, or public reputation of judicial proceedings.'"

The Bruce ruling goes on to note other reasons why it is not finding plain error, but I am not sure those reasons are sufficient to keep Oliver and Bruce from being in conflict.  (Notably, Bruce cited neither Oliver or the Fourth Circuit's ruling in Hughes which takes a similar approach to Oliver.)

In short, everyone repeat after me: "Time to go en banc."

February 3, 2005 at 11:17 AM | Permalink


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Bruce simply reinforces the view I expressed yesterday in a post on the Oliver decision: the "plain error" rule is nothing more than a vehicle for appellate courts to use to engage in lexiographic ledgerdemain. Bruce is probably a correct application of the "plain error" rule but Oliver is probably the proper result where there is, as in Booker, an unanticipated SCOTUS ruling that expands fudnamental Constitutional protections.
That being said, Bruce misses the true impact of Booker. The post-Booker issue does not go to the fact-finding process: it goes to the question of whether the sentencing court would impose the same sentence applying all the factors enumerated in 3553(a) without being restricted to following the Guidelines.
Both the foregoing observations not withstanding, it is also evident from the sentences imposed and the facts in both cases that remand for re-sentencing in light of Booker would not likely result in a differenct sentence being imposed in either case. In Oliver the sentence was towards the mid-point of the "enhanced" range and in Bruce at the top of the "enhanced" range. This is indicative that the sentencing court in both cases believed that lower sentences would not be appropriate (one might note that in Bruce it is entirely possible that the sentencing judge may have felt a higher sentence was appropriate but was constrained by the limits imposed under the mandatory Guidelines).

Posted by: Thomas J. Yerbich | Feb 3, 2005 12:06:31 PM

Not time to go en banc, if the Bruce panel didn't cite Oliver. It appears to be a mistake in following internal rules. I predict the later, Bruce panel will issue a sua sponte correction or amendment to its opinion, acknowledging Oliver. They will either follow or distinguish it.

Posted by: Peter G | Feb 3, 2005 3:12:35 PM

How come no one is addressing personal pet peeves and prejudices. Judges will tend to hide behind all the different rulings and confusion in satisfying egos and establishing names for themselves. In most instances, judges will rely on feelings reached from cases involving the same "unindicted co-conspiritor" used by the government in prior cases, having reached a decision of guilt long before the jury does. Then he/she will add his "gut" feelings of "I think you're the leader and I think you have money somewhere..therefore you get 13 more months and 15,000 more on your fine". What would you rule then? Will some courts accept this and others not even touch it..disparity here we go, que no?

Posted by: pax | Feb 3, 2005 9:58:17 PM

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