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May 20, 2005

A Booker review ... that's a bit off on a key point

Just posted via law.com is this article from the Legal Intelligencer which, reviewing the state of Booker in the circuits, rightly notes that Booker has "had a rippling effect on the lower courts, creating waves of litigation, as criminal defendants at every stage tried to take advantage of it."  The main focus of the article is the Third Circuit's recent ruling in Lloyd (discussed here), which declared that Booker was not to be applied retroactively to cases which were final before Jan 12, 2005. 

The article's reporting on Lloyd and broader Booker retroactivity realities is basically sound.  But the piece stumbles in its discussion of plain error in the circuits when it asserts that "defendants on direct appeal who had failed to raise a Booker argument at the time of their sentencing are routinely winning new sentencing hearings as the appellate courts have ruled that they satisfy the 'plain error' test." 

This statement is perhaps an accurate description of life in the Third and Sixth Circuits.  But in the First, Fifth, Eighth, Tenth and Eleventh Circuits, defendants subject to plain error review are decidedly not "routinely winning new sentencing hearings."  And, in the Second, Seventh and DC Circuits, defendants are only routinely winning Crosby/Paladino remands, not new sentencing hearings.  (The Fourth Circuit story is mixed depending on whether the case involved a Sixth Amendment violation below.)

I surmise this piece comes from the Third Circuit, which perhaps explains the error.  But it is a telling revelation of the mess that Booker has wrought when even the legal press cannot keep up with the dramatic circuit splits on Booker plain error issues (basics here and here).

May 20, 2005 at 02:00 AM | Permalink


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