The devil is in the plain error detail

I have not noted much of the Booker circuit court plain-error activity this week, in part because I'm on the road with limited on-line time and in part because the story is getting monotonous.  In recent days, the three-way circuit split has produced a number of unremarkable remands in those circuits not applying the toughest plain error standard (though the remands are for reconsideration in the Second and Seventh Circuit, and for resentencing in the Third and Sixth).

But decisions earlier this week in circuits applying the toughest plain error standard highlight that the three-way doctrinal split itself does not fully capture all the plain-error variations.  Proving the devil is in the detail, the Fifth Circuit affirmed a sentence in US v. McCalley, No. 04-10635 (5th Cir. Mar. 28, 2005) (available here), a case with Booker and Shepard issues, with just the cursory assertion that the defendant failed to "demonstrate a reasonable probability that the district court would have imposed a lesser sentence if it had been aware of its discretion to do so."  But, in contrast, the First Circuit's decision in US v. Heldeman, No. 04-1915 (1st Cir. Mar. 29, 2005) (available here), shows that court being more "generous" in its approach to some "pipeline" issues.

The First Circuit's decision in Heldeman is an interesting read for many reasons: the case involves steroids and bodybuilders, the opinion includes an extended and interesting forfeiture analysis, and the decision ends with a notable Booker discussion.  (White Collar Crime Blog discusses the case here, and Appellate Law & Practice discusses it here.)  Here is the Booker discussion that has everyone's attention:

Guided by traditional plain error doctrine and Justice Breyer's specific reference to it in Booker, this court has adhered to the analysis mandated by Olano where dealing with unpreserved errors--although we have been generous in other respects, given the peculiarities of the situation created by Booker.  The court has offered to treat almost any colorable claim in the district court as preserving the Booker issue and avoiding plain error requirements. See Antonakopoulos, 399 F.3d at 76.  Even where plain error is required, we have recognized that a district judge may well not have expressed his or her reservations because the guidelines made them hopeless, and so invited proffers by the defendant as to what the defendant might have said if the guidelines had been advisory at the time.

Consonantly, we are inclined not to be overly demanding as to proof of probability where, either in the existing record or by plausible proffer, there is reasonable indication that the district judge might well have reached a different result under advisory guidelines.  After all, it will be easy enough for the district judge on remand to say no with a minimum expenditure of effort if the sentence imposed under the pre-Booker guidelines regime is also the one that the judge would have imposed under the more relaxed post-Booker framework. This opinion has been circulated to the other active members of the court.