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February 16, 2005

Another Booker ruling from the Sixth Circuit

Continuing to set the Booker pace (and continuing to make my head spin), the Sixth Circuit gave us another take on Booker review with its decision Tuesday in US v. Murdock, No. 03-1811 (6th Cir. Feb. 15, 2005) (available here).  The main Booker part of the opinion reaches the conclusion that Murdock's sentencing enhancement was not Blakely problematic because it involved a legal conclusion based on facts admitted by the defendant through his plea.  Then the court explains:

We note that "[t]here may be some federal criminal defendants whose cases were on direct review at the time the Supreme Court issued Booker who are entitled to remand even though their sentences are consistent with the Sixth Amendment." United States v. Milan, No. 02- 6245/6302 (6th Cir. Feb. 10, 2005), slip op. at 8.  This opinion should not be read to foreclose a defendant’s argument, in the appropriate case, that this Court should vacate and remand his sentence on the ground that the district court regarded the Sentencing Guidelines as mandatory at the time of his sentencing.  However, Murdock has made no such argument in this case, and we decline to do so on his behalf.

I read this passage to hold that Murdock essentially forfeited a claim based on what I have called here the "statutory error" which arose from the pre-Booker (and now improper) mandatory application of the guidelines in his case.  However, as I reader Booker, the Sixth Circuit after this finding still had an obligation to review Murdock's sentence under the new 3553(a)-defined reasonableness, which it did not do.

February 16, 2005 at 12:05 AM | Permalink


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Dear Prof. Berman:
I am a defense attorney. Have there been any definitive rulings yet on the retroactive application of Booker/Fanfan to those cases where no direct appeal was taken? i.e. is 2255 review precluded where the case is not already on appeal (particularly in the First Circuit)?

Posted by: roger wareham | Feb 16, 2005 12:35:06 AM

Mr. Wareman,
I am not filling in for the professor, but you might consider reading McReynolds v. U.S., Nos. 04-2520, 04-2632, & 04-2844 (7th Cir. Feb. 2, 2005). It stated, "Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005." This may or may not be on point to your case, but it might give you some guidance.

Posted by: doug | Feb 16, 2005 10:45:32 AM

Occupation: Nurse
Is ther anyone who can e-mail me in laymans terms what the Booker ruling means and how it affects those already in federal prison.
Thank You in advance

Posted by: Mary Jane | Feb 17, 2005 3:14:12 PM

I am a defense attorney


Posted by: creazylo | Apr 23, 2005 10:55:27 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB