Back to the Sixth Circuit Booker beat

I have a lot more to say about the Supreme Court's work in Shepard (summary here, questions here), but the Sixth Circuit, as it seemingly does every day, gives us reason to return to the Booker beat.  Today's entry is US v. Hamm, No. 03-5658 (6th Cir. Mar. 8, 2005) (available here), which does not break any new ground, but covers the Circuit's now established plain-error ground fairly thoroughly.  (A full review on the three-way plain-error circuit split is provided here.)

Hamm is notable in part because we see the Sixth Circuit remanding for resentencing despite the absence of a Sixth Amendment problem in the case or any preserved objection on Apprendi-Blakely-Booker grounds.  It is also notable because the Sixth Circuit ducks a seemingly important issue concerning whether ex post facto principles preclude the application of the PROTECT Act's limits on downward departures in a sentencing for pre-PROTECT Act criminal conduct.  The Hamm court asserts: "We need not address the merits of Hamm's [ex post facto] arguments, however, because we conclude that the sentence imposed by the district court is invalid in light of Booker."

In one sense, the Hamm court is being prudential: if Booker requires resentencing anyway, the court can (and perhaps should) avoid adjudicating the constitutional issue raised by Hamm's ex post facto argument.  But, in another sense, the Hamm court is making life harder for the district court: the sentencing judge is left uncertain about whether ex post facto considerations might impact how it can and should calculate the applicable guideline range (including departure considerations), and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.