Notable 5th Circuit Booker dodge and criminal history decision

A few weeks ago I noted here the surprising Booker silence from the Fifth Circuit.  Every other circuit with the exception of the DC Circuit has now addressed various Booker issues — many in grand ways; but now, a full seven weeks after Booker, we still have not gotten any Booker wisdom from a circuit that typically resolves nearly 70 sentencing appeals each month.  I cannot help but speculate that significant internal debates within the Fifth Circuit is keeping it from addressing Booker issues in the many appeals that are now stacking up.

Notably, the Fifth Circuit did resolve a sentencing appeal yesterday in US v. Montgomery, No. 03-11131 (5th Cir. Mar. 1, 2005)(available here), but did so in a way that allowed it to avoid addressing Booker issues.  The defendant in Montgomery contested a sentencing enhancement based on being classified as an armed career criminal, which in turn was based on the district court's judgment that Montgomery had three prior "violent felonies."  The Fifth Circuit remanded for resentencing by concluding that Montgomery's "prior conviction under a Texas retaliation statute does not qualify as a violent felony."  And, explained the Fifth Circuit, "[i]n light of this conclusion, we need not address the impact of the Supreme Court's recent Booker decision on Appellant's alternative argument that the sentence enhancement violated his Sixth Amendment rights."

Among the interesting aspects of this Montgomery disposition is that the Supreme Court is likely soon to decide the Shepard case, which will address in another context how to interpret and apply Armed Career Criminal Act's sentencing enhancements.  Thus, delaying a decision in Montgomery might have been justified (though not essential) in light of an expected Supreme Court decision.  The same cannot be said for delaying a decision on Booker issues.