Eighth Circuit remains a busy sentencing bee

The Eighth Circuit on Friday issued two major sentencing decisions: Pirani on Booker plain error (basics here and commentary here) and Doe on sex offender residency restictions (basics here and commentary here).  Obviously not a circuit to rest on last week's hard work, today the Eighth Circuit issued two more noteworthy sentencing opinions. 

For Booker fans, we have US v. Mathijssen, No. 04-1995 (8th Cir. May 2, 2005) (available here), in which the court gives us the following insights about the application of Booker's unreasonableness standard (with some citations omitted):

We review the application of the sentencing guidelines de novo and review the district court’s factual findings for clear error.  We continue to review de novo the interpretation and application of the guidelines provisions after Booker.

We conclude that the unreasonableness standard articulated by the Supreme Court in Booker applies only to the district court's determination of the appropriate ultimate sentence to impose based on all the factors in 18 U.S.C. § 3553(a), not to the district court's interpretation of the meaning and applicability of the guidelines themselves.  We must continue to interpret the correct meaning and application of guidelines language, because the district court must continue to determine "the appropriate guidelines sentencing range," as it did pre-Booker, before it considers the other factors in 18 U.S.C. § 3553(a).  The now-advisory guidelines, when correctly applied, become a consideration for the district court in choosing a reasonable ultimate sentence. Reasonableness, therefore, may be "directly linked to the district court's misapplication of a relevant Guideline," United States v. Killgo, 397 F.3d 628, 631 (8th Cir. 2005), but is based on broader considerations than whether the guidelines were properly applied.

For capital sentencing fans, we have the en banc decision of  US v. Allen, No. 98-2549 (8th Cir. May 2, 2005) (available here).  Since Allen cover a lot of ground, I'll rely on the official summary of the court's unanimous opinionfrom the Circuit's opinion page:

On remand from the Supreme Court for reconsideration under Ring v. Arizona, 536 U.S. 584 (2002), the court holds: (1) the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment; (2) the indictment in this case suffered a Fifth Amendment defect; (3) the defect in the indictment was not a structural error; (4) the error was harmless because any rational grand jury would have found the existence of the requisite mental state and one or more statutory aggravating factors based on the actual evidence which was presented to the grand jury in the case, to wit, that defendant created a grave risk of death to others while committing the bank robbery and in fleeing apprehension and that he acted with the required mental state when he intentionally shot and killed a bank guard; (5) mere possibility of grand jury nullification does not transform harmless error into a prejudicial error, and defendant could show nothing more than a possibility; and (6) constitutional challenge to Federal Death Penalty Act rejected.