Third Circuit clarifies(?) its unique approach to Booker pipeline cases

I am connected after a terrific day participating this afternoon in this terrific Illinois Booker Roundtable. I learned so much from the judges and others involved in the event, but my Illinois reflections may have to wait until the weekend because I must first catch up on the day's sentencing news. Let me begin with a report on the Third Circuit's en banc ruling today in US v. Davis, No. 02-4521 (3d Cir. Apr. 28, 2005) (available here). In Davis, the Third Circuit finally explains (sort of) its distinctive approach to Booker pipeline cases.

Recall that the Third Circuit, without detailing its exact approach to plain error issues, has been remanding seemingly every case for resentencing with this standardized explanation: "In light of the determination of the judges of this court that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." See, e.g., today's ruling in US v. Bruce, No. 02-3316 (3d Cir. Apr. 28, 2005) (available here).  In Davis, the Third Circuit talks about a number of Booker pipeline issues and seems to indicate that it is following the Sixth Circuit's Barnett "presumed prejudice" approach to plain error claims.

Based on a quick read, I am not entirely sure the Third Circuit in Davis effectively or completely justifies what has seemed like a "remand them all" approach to sentencing appeals raising Booker claims.  But, these closing paragraphs in Davis suggest the Circuit believes that interests of fairness and uniformity are being served by its practices:

Booker applies to all cases pending on direct review.  By remanding, we ensure that each defendant to whom Booker applies is sentenced accordingly.  This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, "correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]" on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

In this opinion, we express no view on waiver or alternative sentences. We will continue to review each appeal individually.  Appellants have been directed to state whether they wish to challenge their sentence under Booker. For those who do not, we consider the appeal on its merits.  Where an appellant raises a Booker claim and establishes plain error, however, we will decide claims of error related to the conviction, vacate the sentence, and remand for consideration of the appropriate sentence by the District Court in the first instance.