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February 4, 2005

Circuit pacing, process and plans

Among the interesting stories to track in the post-Booker world is the pace and process through which the different federal circuit courts are considering and addressing the many legal questions issues that Booker has raised.  Taking stock on a Friday afternoon, I count on-line roughly 30 circuit rulings which discuss Booker in some way, although a handful involve circuit courts just noting that the defendant has not raised a Booker claim.

Interestingly, three circuits (the First, Fifth and DC) have been completely silent to date, and three other circuits (the Third, Ninth and Tenth) have been "officially" Booker mute as these circuit have only issued a few unpublished decisions that briefly mention or address Booker.  The other half of the circuits have been more vocal, with the Eighth Circuit setting the pace with six published and one unpublished decision, followed by the Second and Eleventh Circuits which each have produced four published cases mentioning Booker is some way.  The Sixth Circuit, as detailed here, found a way to create a conflict between its two published dispositions, though it also has two unpublished Booker rulings.  And the Fourth and Seventh Circuits both have one major ruling (the Fourth on plain error in Hughes; the Seventh on retroactivity in McReynolds) to go with a few minor cases that mention Booker.

Also of interest, we can see from this notice that the Eighth Circuit has plans to address the issue of plain error through an en banc argument scheduled for March 9.  And those in the know tell me that this notice shows that the Tenth Circuit likewise has made en banc Booker plans through arguments scheduled for March 7.  In addition, as noted here, the Second Circuit clearly worked hard to speak with a coordinated vote through its Crosby decision, and I suspect some other circuits (though obviously not the Sixth on plain error) may be doing the same.

Of course, the disparate pacing, process and plans for Booker consideration will not be as worrisome as disparate results.

February 4, 2005 at 03:41 PM | Permalink


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In a direct appeal after a jury verdict set for oral argument next Tuesday, where there are several issues (in addition to sentencing), an order issued yesterday consisting of the following:

Filed order (Deputy Clerk: hh) Counsel in this case are
hereby advised that we will defer submission of the
Defendant-Appellant's sentencing claim pending further
order of the court. Counsel are instructed to prepare for
oral argument on all the remaining issues in this case, in
cluding the propriety of the district court's restitution
order. (Phoned parties at 3:25 p.m.)

Does anyone know what may be occurring in the 9th Circuit in these types of matters?

Posted by: Howard O. Kieffer | Feb 4, 2005 4:07:34 PM

This is in regard to the "otherwise" clause of 924(e) and not Booker. 8th circuit today issued US v. McCall saying DWI is not a violent felony. They had mentioned the rule of ejusdem generis. Would that same rule apply to prior walkaway escapes? I'm not an attorney obviously, just an ordinary citizen, does anyone have a view on this?

Posted by: gini | Feb 4, 2005 10:33:18 PM

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