More interesting Booker remands from the Sixth Circuit

The Sixth Circuit continues to be the busiest court in the Booker business as today it has two more (unpublished) Booker opinions remanding cases to the district court.  In addition, as detailed by Appellate Law & Practice here, the Sixth Circuit also seems to be almost automatically remanding cases that were GVRed back to the Circuit from the Supreme Court.  (A previous discussion of circuit contrasts with the GVR cases is here, and Appellate Law & Practice here assails the Eleventh Circuit's approach to GVRs in Dockery.)

The notable opinions on-line today (though dated yesterday) are US v. Williams, No. 03-6493 (6th Cir. Mar. 3, 2005) (available here) and US v. Tate, No. 02-4382 (6th Cir. Mar. 3, 2005) (available here).  The Tate case involved a preserved objection to drug quantity findings by the sentencing judge that enhanced the applicable guideline range, and the Sixth Circuit ordered a remand by simply stating: "Unless the Sixth Amendment error is shown to be harmless, reversal is appropriate.  Because there has been no showing that the error was harmless, Tate is entitled to re-sentencing."

The Williams case involved an unpreserved Booker claim (and also did not involve any judicial fact-finding). Drawing heavily from the Sixth Circuit's ruling in Barnett (discussed here), here's how the Williams Court explains its plain error approach:

This court in United States v. Barnett recently held, under circumstances materially indistinguishable from those here (including plain-error review), that a defendant meets the first, second, and fourth prongs of the plain-error test when sentenced under mandatory Guidelines. See United States v. Barnett, 2005 WL 357015, at *8, 12 (6th Cir. 2005).  As regards the third prong, Barnett requires panels of this circuit to presume prejudice unless record evidence exists to rebut the presumption.  Barnett, 2005 WL 357015, at *12. 

A review of the sentencing-hearing transcript shows the district court here struggled with the decision to commit Williams to a prison setting instead of home confinement.  The court called this a "fairly close case" and recognized that Williams suffers from "a very significant physical impairment." The court, however, concluded that the Guidelines contemplated "something more" for § 5H1.4 relief and thus denied the departure. The record lacks "clear and specific evidence" demonstrating that the district court would not have granted the departure under advisory Guidelines.

Williams's case meets the Barnett standard for exercising our discretion to notice the error.  We vacate his sentence and remand to the district court for resentencing under the new rubric established by Booker.