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February 18, 2005

Time to put out an APB for the 5th Circuit?

Though a few smaller circuits, specifically the First and DC Circuits, have not yet given us any notably Booker rulings, the total Booker silence from the Fifth Circuit seems particularly noteworthy.  We are now more than a full five weeks since Booker was handed down, and every other circuit with a sizeable caseload has issued at least one major and some minor Booker rulings.  (The ever exciting Sixth Circuit already has handed down more than a dozen notable Booker rulings.)

The quietness of the Fifth Circuit is especially interesting given that (1) last summer the Circuit very quickly addressed Blakely's applicability to the federal system and ruled in Pineiro less than three weeks after Blakely that the federal guidelines were not affected, (2) the Circuit disposed of nearly 200 appeals raising Blakely issues in the 6 months between Pineiro and Booker, and (3) the Circuit has a huge appellate and district court sentencing caseload (second only to the Ninth Circuit's); indeed, in Pineiro the Fifth Circuit explained that it had to rule quickly  on Blakely because of the "unremitting press of sentencing appeals."

I have not heard any official word of the Fifth Circuit planning for en banc consideration of Booker issues, but perhaps some form of official or unofficial collective action by the court is slowing it down.  Given the fact the circuit faces on average more about 100 appeals per month, and also given the likelihood that appeals increased after Blakely, there must be an enormous backload of cases piling up while the Fifth Circuit tries to find its post-Booker voice.

February 18, 2005 at 03:10 AM | Permalink


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As someone who is in the Fifth Circuit, I can tell you that the Circuit is asking for letter briefs regarding the application of Booker. Perhaps the Circuit wants to avoid the leading edge and get it right this time, which will prevent them from getting cases back, again.

Posted by: doug | Feb 18, 2005 8:42:27 AM

As noted above, the 5th asked for letter briefs from all parties with Booker issues. The government briefs were due Feb. 10. It's possible some AUSA's asked for more time, altho' the response to my client's brief was filed two days after ours was filed.

Anyway, the issues should be joined or nearly joined by now, so I expect something from the court momentarily.

Posted by: Richard Crane | Feb 18, 2005 10:58:23 AM

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