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February 10, 2005

Still more Booker wisdom from the Sixth Circuit

Today's daily dose of Booker wisdom from the Sixth Circuit comes in the decision of US v. Milan, Nos. 02-6245/6302 (6th Cir. Feb. 10, 2005) (available here), which speaks on plain error and a host of interrelated issues in the course of vacating one defendant's sentence and affirming another's.  Both ruling are interesting and at times curious.

On plain error, after a long review of the basic legal standards, the Milan court remands one defendant's sentence which had been calculated under the mandatory guidelines with reliance on judicial fact-finding.  And, at the end of this discussion, the court notes all recent circuit case law and explains why it thinks Oliver (6th Circuit) and Hughes (4th Circuit) take the right approach to plain error while Rodriguez (11th Circuit) and Crosby (2d Circuit) have it wrong:

In our judgment, a critical aspect of Booker has escaped the Eleventh and Second Circuits' thinking on these matters — namely, that the Supreme Court remanded Booker's case for resentencing.  It is certainly our obligation as courts of appeal to carefully consider what the Supreme Court said in Booker.  Nevertheless, we cannot ignore what the Court did.  At the very least, a remand for resentencing of Booker must rest on a decision that the error in his case was reversible, i.e., was not harmless and affected Booker's substantial rights.... In fact, as our colleagues observed in Oliver, we can safely conclude that, in the ordinary case, a Booker-type Sixth Amendment violation affects substantial rights. But the Supreme Court's treatment of Booker's case may suggest something more.  It turns out that Booker did not make a Sixth Amendment objection to his sentence in the district court. In fact, Booker's Sixth Amendment challenge first appeared in a supplemental brief to the Seventh Circuit, which he filed soon after the Supreme Court's decision in Blakely.  The Government pointed this out in its petition for certiorari, see Pet. for Cert., 2004 WL 1638204, at *3-4, but, inexplicably, the Supreme Court did not address whether Booker's sentence was plain error. Yet the most reasonable reading of the Court's disposition of Booker's case suggests that the Court thought it was.  After all, in Booker, the Supreme Court quite explicitly instructs reviewing courts to determine whether an appealing defendant made a Sixth Amendment argument in the district court and to review for plain error if he did not. See Booker, 125 S. Ct. at 769. We cannot fathom why the Court would not follow its own instruction, although it may be for the simple, and strange, reason that the Seventh Circuit declined to address the question of plain error because the Government apparently did not raise the issue. See United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004).

For another defendant, however, the Sixth Circuit in Milan determines he "did not receive a sentence in excess of the maximum sentence authorized by the facts he admitted in his guilty plea," and thus "is not entitled to resentencing on the grounds that his sentence violates the Sixth Amendment."  The court then drops a footnote to indicate that some other defendants may still be "entitled to remand even though their sentences are consistent with the Sixth Amendment," but the Court does not engage in the sort of harmless error analysis that Booker seems to countenance and that the 10th Circuit applied in a similar case to order resentencing in US v. Labastida-Segura last week (detailed here).

February 10, 2005 at 11:56 AM | Permalink


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Another Booker circuit split??

Note in particular FN2 in Milan, where the 6th Circuit indicates that it is sufficient to preserve a Blakely claim for plain error review simply by having raised the claim, for the first time, in a post-argument 28(j) letter.

Now compare FN3 in the 8th Circuit's very recent Booker opinion (so far slighted by this blog, sniff sniff) in US v. Cramer, No. 04-1129, 2005 U.S. App. LEXIS 1707, in which Judge Smith says that "Prior to oral argument, Cramer filed a letter pursuant to . . .[Rule] 28(j) arguing that his Sixth Amendment rights were violated under [Blakely]. . . .[Rule] 28(j) provides a method whereby a party may supplement cited authorities after filing briefs or after oral argument. However, a party may not raise arguments for the first time in a Rule 28(j) letter. . . . Cramer did not seek permission to file a supplemental brief properly raising the Blakely issue. . . . Accordingly, we refuse to consider the matter."

Posted by: Jason | Feb 10, 2005 12:54:51 PM

Nice catch, Jason. By my count, we now have at least 3 formal appellate review circuit splits on various "cases in the pipeline" issues. I keep wondering if SCOTUS will feel compelled to weigh in: these splits are very consequential for cases in the pipeline, but are not central to the long-term realities of the post-Booker universe.

Posted by: Doug B. | Feb 10, 2005 1:22:22 PM

Wait, let me get this...the Supreme Court issued a holding on plain error without saying anything about plain error? Wow, them Sixth Circuit judges is sure smart.

Posted by: agl | Feb 10, 2005 3:42:37 PM

I've read the testimony of Judge Hinojosa and the rest of the committee and find all of them saying the same thing. They are saying..."Something needs to be changed", but they don't want to be the ones to come out and say it outright. None of them really address what our literature actually and in reality is saying. What the American people want addressed....why are all our prisons busting and the budgets constantly increasing , if our current system of prevention is supposedly working so well? Why are we spending so much money in building more prisons while our kids are getting exposed more and more to drugs then ever in history. Why are drug offenders getting softer sentences and able get paroled easier so they can be back on the street distributing their poison again. No one talks about parole for federal non-violent criminals. No one talks about discrimination because of socio-economic status...mainly forcing those white collar criminals to longer federal sentences only because they worked to get to the status of being considered "white collar". Don't they see some sort of discrimination in the fact that they could be fined and jailed a lot less or not at all if they didn't have the distinction of having a nice paying job with an excellent education and just happened to make a mistake, with no victims other than what the government sold to them, such as 4 tires. Heck, Justice Thomas got 4 tires costing $1200 dollars! Witch hunting get expensive. I think everyone sees the King is not wearing clothes but they refuse to say something because they are comfortable, until it effects them. Our justice systems serve only the rich, someone tell God the truth, because everyone else is part of the problem, including all our poitical leaders. Defenders say.."if you had $250 thousand dollars, you'd probably get away with murder". I believe that. Our justice system reminds me of Mexico, with the have and have nots system. Quit talking laws and speak humility and justice for ALL.

Posted by: pax | Feb 10, 2005 5:04:14 PM

The government voluntarily "waived" the plain error standard of review in Booker in order to get a test case (of its choosing) decided post-Blakely. A tactical decision, questionable only in hindsight. As an appellate practitioner, I had never heard of a litigant attempting to "waive" a favorable standard of review as if it were like an affirmative defense, wasn't so sure this was even possible, and was somewhat surprised the Supreme Court allowed the tactic, at least without comment.

Posted by: Peter G | Feb 10, 2005 11:52:37 PM

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