Pondering the SCOTUS plain error dodge

Two month ago, I pondered the future of Booker plain error, and my mind is again racing with today's news that the Supreme Court has refused to take up the Rodriguez case from the Eleventh Circuit (even though the SG and many circuit judges have called for cert. to be granted).  Back in February, I was already asking in this post whether the Supreme Court would clean up the Booker plain error mess, and by March I could document in this post the three-way circuit split on the issue (which has only gotten deeper and more nuanced over the last few months).  As detailed in this May post, I thought this issue was cert. worthy after the Eighth Circuit's Pirani en banc decision, and I was expecting we would be getting a cert. grant in Rodriguez.

But, as detailed in this post, I can identify reasons why the Supreme Court might reasonably decide to dodge the intricate legal debate over Booker plain error.  As time and caseloads march forward, the number of plain error pipeline cases is diminishing.  Moreover, in two circuits (the Third and Sixth), most plain error cases are already going back for full resentencings, and in four other circuits (the Second, Seventh, Ninth and DC), most plain error cases result in at least limited remands. 

Further, even if the Supreme Court had granted cert. today, we would likely not have a decision until well into 2006; by then, the number of "live" Booker plain error cases might be quite small.  And, as detailed in this post, the Supreme Court has no shortage of other critical Blakely/Booker issues to address that are of much greater long-term importance to state and federal sentencing systems (e.g., the status and scope of the prior conviction exception, Booker and Blakely and Apprendi retroactivity, Blakely's applicability to judicial determinations of non-prison sentences or consecutive sentences).

As I have said before, one might view the SCOTUS plain error debate as an interesting test case for the true importance of national sentencing uniformity relative to other goals and interests.  Federal defendants are, because of the different circuit plain error rules, clearly receiving unequal justice in the wake of Booker.  But, though the consequences of unequal justice may be quite significant for individual defendants, the consequences may not be so profound for the entire system to merit Supreme Court correction.  Of course, the Booker remedial majority extolled the goal of federal sentencing uniformity, and it's hard time see why SCOTUS would dodge Booker plain error if it truly believes such uniformity is of paramount importance.  But, perhaps now that SCOTUS really sees the many messes it's made made with Blakely and Booker, the Court may now realize that uniformity is always an elusive goal that ought not be pursued without concern for other institutional interests.