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June 3, 2005

Contrasting neighbors: the Booker pipeline in the 8th and 9th Circuits

The contrast between the status of Booker pipeline cases in the Eighth and Ninth Circuits really struck me today as I did my mid-day circuit review.  I see on this official opinion page that the ever-active Eighth Circuit has today released yet another sizable number of sentencing rulings; an on-line search indicates that the Eighth Circuit has now produced nearly 150 Booker pipeline rulings and over 70 in the past month alone.  Meanwhile, though this week the en banc Ninth finally gave us a plain error decision in Ameline (basics here, commentary here), an on-line search highlights that the Ninth Circuit has resolved only a handful of Booker pipeline cases in the last month.

The divergent pace of Booker pipeline cases in these circuits is even more dramatic when one considers that, according to recent USSC appeal statistics, the Ninth Circuit has nearly three times as many as guideline appeals as the Eighth Circuit.  Based on the USSC data, I would guess that the Eighth Circuit is getting close to having its Booker pipeline mostly cleared out, while the Ninth Circuit may have over a thousand Booker cases clogged up in the pipeline.  As noted here, a press report about Ameline suggested there were 700 plain error case in the Circuit, and there now have to be many more in which Blakely/Booker claims were preserved.  The long-awaited Ameline decision, and its adoption of a Crosby limited remand approach, should get the Ninth Circuit pipeline flowing, but there is a lot of plumbing ahead.

Interestingly, it is hard to figure out which circuit is taking a wiser approach to all the Booker pipeline cases.  The Eighth Circuit's tough approach to plain error in Pirani (basics here) has allowed the circuit to affirm many sentences imposed before Blakely and Booker came along.  But, if (when?) the Supreme Court takes up the plain error issue (background here and here and here), and if (when?) the Supreme Court takes a different view on plain error than does Pirani, I expect there will be a whole lot of new GVRs bringing these cases back before Eighth Circuit.  Of course, the problem with the Ninth Circuit's go-slow approach is that, as explained here, it seems unlikely we should expect any clarifying Blakely or Booker decisions until at least March 2006.  Thus, unless the Ninth Circuit is prepared to keep its Booker pipeline plugged up another year, a go-slow approach is not clearly more effective or efficient that the Eighth move-along approach.

Indeed, the more I reflect on the pipeline mess (and the circuit-by-circuit disparity it has engendered), the more ingenious appears the Third Circuit's approach in Davis (basics here), which essentially calls for sending all significant pipeline cases back to the district court.  Though doctrinally debatable, the Davis approach has a simplicity and efficiency that is hard not to like in the crazy, mixed-up post-Booker world in which we all now live.

June 3, 2005 at 01:00 PM | Permalink


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