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March 17, 2005

More Sixth Circuit plain error remands

Yesterday was a particularly notable day for Booker developments in the circuits, with the First Circuit's remand in MacKinnon (basics here, commentary from PRACDL Blog here), the Fourth Circuit's reiteration of its approach to plain error in Hughes (discussed here), and the Eighth Circuit's work on reasonableness in Rogers (details here) and harmless error in Haidley (details here).  But we should never forget to check in with the Sixth Circuit, since it is always keeping Booker busy.

And yet the Booker story in the Sixth Circuit is getting a bit dull, even though the court remains Booker active.  The Sixth Circuit is now quite consistently remanding plain error cases on the authority of Oliver and Barnett.  For example, today we get such remands in the published case of US v. McCraven, No. 03-6311 (6th Cir. Mar. 17, 2005) (available here), and in the unpublished dispositions in US v. Howard, No. 04-5240 (6th Cir. Mar. 17, 2005) (available here), US v. Susewitt, No. 03-6572 (6th Cir. Mar. 17, 2005) (available here), US v. Bowman, No. 04-5102 (6th Cir. Mar. 17, 2005) (available here).  And yesterday brought similar unpublished dispositions in US v. Funk, No. 03-4559 (6th Cir. Mar. 15, 2005) (available here), US v. Green, No. 04-1499 (6th Cir. Mar. 16, 2005) (available here).

March 17, 2005 at 12:41 PM | Permalink


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law student
has anyone discussed, or do you have any thoughts as to whether a sentence within the guideline range might be challengable as unreasonable?

Posted by: Danica Noble | Mar 17, 2005 1:39:47 PM

That depends first on the resources defendant keeps in the legal defense fund. With time and research and artful drafting, the sentencing range in a truly exceptional USSG departure case (multiple independent grounds) can be spun as unreasonable under all of 18:3553. Important here is the sentencing court's statement of reasons under Sec. 3553(c). Good luck getting sympathy from a deferential appellate panel, no matter the client's resources.

Defense attorney, by the way.

Posted by: Jay Hurst | Mar 18, 2005 10:22:14 PM

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