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February 13, 2005

Another important (and opaque) 3d Circuit remand

A reader pointed out that I missed an important (published) remand from the Third Circuit in my review of all the late week Booker action from the circuits (detailed here and here and here and here).  As in its unpublished Mortimer ruling, the Third Circuit's Booker disposition in US v. Davis, No. 02-4521 (3d Cir. Feb. 11, 2005) (available here), does not provide much factual background or legal analysis.  Yet, the one paragraph Booker discussion in Davis hints that the Third Circuit might be employing the broadest remand standard of any circuit.  Here is the entire Booker discussion appearing on the last page of the Davis opinion:

Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.

Reading Mortimer and Davis together, I am inclined to think that the Third Circuit has decided to remand every Booker claim without even bothering with plain error review. (The Third Circuit Blog comes to this same basic view here based on just the Mortimer ruling.)  Of course, if it is the Third Circuit's plan to remand every case, it ought to make that clear.

As I hope to explain in a later post, I think a circuit plan to remand all sentencing cases still on direct review that were imposed under mandatory guidelines might be the most just and efficient way to deal with the Blakely/Booker pipeline cases.  In other words, I believe it would be most prudent for the circuits to generally forgo using prudential doctrines to affirm sentences imposed under the old mandatory guidelines system.

February 13, 2005 at 08:59 AM | Permalink


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Can we safely assume that the Third Circuit will define the standard of review - perponderance of the evidence or beyond a reasonable doubt - that the disctrict court sentencing judges are expected to utilize in determining factors and calculating sentences? If the ruling for remand is so broad as to fail to clearly define expectations of the judges, aren't we leaving it open to more and more litigation? How would that serve justice, or remedy Booker?

Posted by: Cathy | Feb 13, 2005 3:48:09 PM

It appears that Judge Sloviter and her panel here may have tipped the full Court's hand prematurely. The decision refers to "the determination of the judges of this Court that the sentencing issues appellant raises are best determined by the District Court in the first instance," but there has been no such (public) "determination" yet. We'll have to wait and see when the opinion containing that "determination" is released (I'd have to guess, now, that it will be within a few days) whether it will be the same as Crosby in the Second (district court has some sort of discretion whether to resentence) or whether it is indeed a blanket directive for resentencing. If so, I'll be interested to see how the Circuit reconciles that with the last sentence or two of the Breyer majority opinion.

Posted by: Peter G | Feb 13, 2005 4:52:42 PM

I wonder, Peter G., if is is enough for a court to say we think it is more prudent to send every case back than to use prudential doctrines to try to sort through all the error.

My (uninformed) instinct is that circuit court's have some discretion in the application of ordinary prudential doctrines, and it seems within a system seeking to achieve uniform treatment of all offenders, uniformly sending every case back for Booker sentencing may be more prudent (certainly more efficient) than trying to sift through complicated plain and harmless error doctrines.

But, then again, I could be all washed up on this issue.

Posted by: Doug B. | Feb 13, 2005 6:30:17 PM

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