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March 31, 2005

A very busy Booker day in the circuits

I spent the day in the First Circuit discussing Blakely issues and death penalty issues as part of a show put together by the Massachusetts School of Law's "A Question of Law" program.  But the Booker action was taking place in a bunch of other circuits today, with at least six circuits issuing sentencing opinions that discuss or note Booker.  Interesting unpublished decisions from the 4th and 8th Circuits will be discussed in another post, but first I want to chronicle yet again the impact of the circuit's divergent approach to plain error issues.

I counted today a total of six remands on Booker grounds from the 2d, 3d and 4th Circuits (all of which are largely pro forma).  But from the 5th Circuit we get a sentence affirmance in US v. Bringier, No. 04-30089 (5th Cir. Mar. 31, 2005) (available here), in which the court works hard to avoid having to remand for resentencing.  In Bringier, the Fifth Circuit concludes, on debatable facts, that the defendant did not preserve a Sixth Amendment claim below and that he did not show that the "result would likely have been different had the judge been sentencing under the post-Booker advisory regime rather than the pre-Booker mandatory regime." 

The Bringier decision, when compared to the First Circuit's recent Heldeman ruling (discussed here), once again spotlights that even those circuits applying the toughest plain error standard are applying this standard in inconsistent ways.

March 31, 2005 at 11:12 PM | Permalink


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