DC Circuit joins the Booker world

Issuing its very first Booker opinion, the DC Circuit yesterday in US v. Coumaris, No. 03-3024 (D.C. Cir. Mar. 08, 2005) (available here), did not have to struggle much because the government itself "moved to vacate Coumaris' sentence and to remand for resentencing."  In Coumaris, the government conceded that the defendant had preserved the Sixth Amendment issue through objections to his PSR.  The DC Circuit then explains:

This means that the Booker challenge here is governed by the harmless error standard appropriate for constitutional error, which the Government states it cannot satisfy.  That is, the government concedes that it cannot demonstrate "beyond a reasonable doubt that the error complained of did not contribute to the [sentence] obtained."

The government's harmless error concession seems notable, since the defendant's 48-month sentence presumably was not at the bottom of a guideline range. 

Interestingly, the Coumaris court expressly rejects the defendant's request to "resolve his specific challenges to the district court's application of the Guidelines before remanding." The DC Circuit asserts, that because "the district court might impose a different sentence on remand, and because the parties might choose not to appeal that sentence," addressing now "objections to the court's original guidelines calculations would be premature at best and unnecessary at worst."  However, as I discussed here in connection with the Sixth Circuit's ruling in Hamm, this dodge may make life harder for the district court at resentencing: the sentencing judge is left uncertain about whether it has calculated the applicable guideline range properly, and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.