A morning shot of Booker circuit action

Even though yesterday was — gasp — a day without a Sixth Circuit Booker ruling, we did have the big, crazy Fourth Circuit plain-error news and also another group of Booker circuit decisions.  As suggested in yesterday's review here of circuit cases from earlier this week, it is becoming ever more difficult to keep up with all the circuit Booker action.  Here is a very quick review of yesterday's notable rulings:

The Third Circuit in US v. Benjamin, 2005 WL 546647 (3d Cir. Mar. 09, 2005), and US v. Pinkston, 2005 WL 546648 (3d Cir. Mar. 09, 2005), continued its practice of sending all Booker issues back to the district court.  In Benjamin, though, the Third Circuit did affirm a restitution order that seems to rest on judicial fact-finding without any consideration of Blakely issues that might be implicated.

The Seventh Circuit, and particularly Judge Easterbrook, used the rejection of a habeas claim in Knox v. US, 2005 WL 545269 (7th Cir. Mar. 09, 2005), to discuss a number of the Supreme Court's recent sentencing precedents.  Along the way, the Knox court makes the seemingly significant assertion, citing Supreme Court precedents, that "judicial resolution of a factual dispute that should have been presented to a jury is not a 'structural error' that requires automatic reversal."

The Eighth Circuit was able to affirmed two sentences: in US v. Sayre, 2005 WL 544819 (8th Cir. Mar. 09, 2005), the court ducked the plain-error/harmless-error debate by concluding that, whatever the review standard, "the result is the same for Sayre ... [because] while the district court followed a sentencing scheme that is no longer mandatory, doing so did not affect Sayre's ultimate sentence in this case"; In US v. Quinn, 2005 U.S. App. LEXIS 3903 (8th Cir. Mar. 09, 2005), the court affirmed a 10-year mandatory sentence based on a prior conviction (notably, without mentioning Shepard).