A window into the Booker pipeline mess

Today's Eleventh Circuit decision in US v. Sears, No. 03-16550 (11th Cir. June 8, 2005) (available here) provides a window into the mess in lower federal courts in the wake of Booker.  In Sears, the court has to sort out the confluence of a prior 11th Circuit ruling, a district court resentencing, and a Supreme Court GVR.  Sears caught my eye particularly because of this account of what happened at the district court's February resentencing:

The district court advised the Appellant that it would sentence him in accordance with the Booker decision, as he had previously requested, if he wished the court to do so.  The court pointed out that the first time around it had sentenced the Appellant to the highest sentence it could while treating the guidelines as binding.  It explained that treating the guidelines as advisory, rather than mandatory, could result in a higher sentence. The Appellant, after consulting with his attorney during a recess, elected not to be sentenced de novo in accord with the Booker decision but instead to have the district court simply correct the supervisory release terms as the court of appeals' mandate required.  That is what the district court did.

On appeal, the 11th Circuit now affirms by stressing that Sears is "a case in which the Appellant actually waived the right to be sentenced in accord with Booker after that decision came out.  The Appellant could have had the relief he seeks now, but he knowingly elected to forgo it.  In these circumstances, we will not give the Appellant yet another bite at the Booker apple."

Among other reactions, I am pondering why the defendant, being resentenced in February 2005, could "waive" resentencing according to Booker.  As I have suggested in posts about appeal waivers (see here and here), the specific remedy devised by Justice Breyer in Booker did not really grant defendants new rights, rather it devised a new advisory guideline system to avoid constitutional flaws identified in the operation of a mandatory guideline system.  I thus find puzzling the idea that defendants can "waive" some "right" to be sentenced under the new constitutional advisory system and thereby obtain resentencing under the old unconstitutional mandatory scheme.

Of course, as I have suggested in other posts here and here, due process/ex post facto principles might give defendants a right not to receive an increased post-Booker sentence based on pre-Booker conduct.  But the district court's suggestion of a possibly higher sentence upon resentencing suggests that this possible due process/ex post facto right is not the right being "waived" in the Sears case.  Thus, it seem all the Sears action is premised on the questionable assumption that defendants can "waive" their "right" to be sentenced in a constitutional manner in order to be sentenced within an unconstitutional system.

Perhaps an easier way to ponder this issue is to consider whether defendants who committed their crimes before Booker might now have a unilateral right to demand to still be sentenced under the pre-Booker mandatory guidelines system and thereby preclude a sentencing judge from considering the broader 3553(a) factors that Booker brings to the fore.  If one does not think a defendant has such a unilateral right, then what transpired in Sears should seem a bit hinky.  Or, to restate this matter by abusing the 11th Circuit's metaphor, I think every sentencing after January 12 should be taking bites from the Booker federal sentencing apple, even if a defendant might want his sentencing to bite from the pre-Booker (now unconstitutionally bitter) federal sentencing orange.