Today's Booker circuit tour

Though I will still plan to post any blockbuster Booker circuit rulings when I see them, I am now growing fond of just periodically spotlighting notable circuit Booker decisions in one mega-post (as I did here yesterday).  So, today we have:

From the Fourth Circuit, US v. Harp, No. 03-4817 (4th Cir. May 4, 2005) (available here) covers some interesting criminal history ground in the course of affirming a sentence.

From the Seventh Circuit, US v. Jaimes-Jaimes, No. 03-3871 (7th Cir. May 4, 2005) (available ere) also-also covers-covers criminal history issues, and also has an interesting discussion of the distinction between waiver and forfeiture.

From the Ninth Circuit, US v. Cardenas, No. 03-10009 (9th Cir. May 4, 2005) (available here) closes with an rejection of an effort to undue an appeal waiver based on Booker, stating a change in the law does not make a plea involuntary and unknowing."

From the Eleventh Circuit, US v. Davis, No. 04-14585 (11th Cir. May 4, 2005) (available here) rejects "the Government's argument that the grant of its U.S.S.G. § 5K1.1 motion eliminated or rendered harmless any Booker error."  The key passages from Davis seem worth quoting:

The flaw in the Government's argument is that the grant of § 5K1.1 did not give the sentencing court "unfettered" discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered.  This Court had previously stated, "When, on the Government's motion, a district court grants a downward departure under U.S.S.G. § 5K1.1 . . ., the sentence reduction may be based only on factors related to the defendant's substantial assistance." United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996). While the sentencing court had discretion under § 5K1.1 in deciding whether to depart from the guidelines and the extent of that departure, it did not have the discretion to consider factors unrelated to the nature and type of Davis's assistance. Importantly, the sentencing court could not permissibly consider the sentencing factors announced in 18 U.S.C. § 3553(a) when exercising its discretion.

We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553(a). Therefore, the Government cannot meet its burden of showing that the mandatory application of the guidelines in violation of Davis's Sixth Amendment right was harmless beyond a reasonable doubt.

UPDATE:  As effectively reported here by Appellate Law & Practice, the Fifth Circuit also had a plain error reversal US v. Pennell, No. 03-50926 (5th Cir. May 4, 2005) (available here), and also the Tenth Circuit again closed the day by releasing a number of sentencing opinions, one of which involves Booker remands but the most of which involve affirmances of sentences on various grounds.