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April 27, 2005

A quick review of more Booker circuit action

In addition to the Fourth Circuit's notable plain error ruling in White on Tuesday and the other circuit Booker rulings noted here, a couple more appellate decisions caught my eye late tonight.  Here is a quick review:

From the Sixth Circuit, US v. Strbac, No. 04-4158 (6th Cir. Apr. 26, 2005) (available here) is the first Sixth Circuit decision, I believe, to consider an appeal in which the district court announced an identical "alternative" sentence during a sentencing between Blakely and Booker.  Expressly following the Fourth Circuit's approach (detailed here), the Strbac court affirms the alternative sentence, although only after expressly considering, as I urged here, the reasonableness of the sentence.

From the Tenth Circuit, US v. Bush, No. 03-4224 (10th Cir. Apr. 26, 2005) (available here) affirms a sentence over a Booker challenge in a way that seems to reveal the force of the 10th Circuit's distinctive approach to plain-error developed in its Gonzalez-Huerta ruling (details here).  The Bush court explains why the jury's verdict authorized the defendant's sentence to hold "there was no Sixth Amendment violation," but never considers the distinct question of whether the defendant was prejudiced by the application of mandatory guidelines (presumably because Gonzalez-Huerta indicates that the fourth prong of plain error would not be satisfied in this case even if the defendant could make a showing of prejudice).

April 27, 2005 at 01:54 AM | Permalink


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Doesn't Strbc conflict with the Sixth Circuit's published decision in US v. Jones, 399 F.3d 640, in which the Court vacated and remanded for resentencing so that the district court could consider a ground for departure under Booker? The Court in Jones seemed to mention and implicitly overrule the prior standard that denials of departures were unreviewable if the district court recognized its discretion. The Strbc panel cited pre-Booker law and affirmed on the ground that the district court's refusal to exercise its discretion to depart downward was unreviewable.

Posted by: Rick | Apr 29, 2005 9:27:48 AM

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