Notable 3d Circuit footnote on constitutionality of SRA

An astute reader has highlighted to me this very interesting closing footnote from the Third Circuit's decision earlier this week in US v. Pojilenko, No. 03-4446 (3d Cir. July 27, 2005) (available here):

Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powers grounds the constitutionality of the Sentencing Reform Act as amended by the "Feeney Amendment," Pub.L. No. 10821, § 401, 117 Stat. 650 (2003).  He asks us to direct that only the Sentencing Guidelines in effect before the Feeney Amendment be applied on remand in an advisory capacity.  We decline to do so.  This argument was not advanced in the District Court, and our review is confined to plain error.  The Supreme Court rejected a separation of powers challenge to the Act in Mistretta v. United States, 488 U.S. 361 (1989). While the Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta, the District Court clearly did not commit plain error in applying the post-Feeney Amendment guidelines in this case. Even if an argument is "plausible," any error is not "plain" when it was not "clear under current law." United States v. Clark, 237 F.3d 293, 298-99 (3d Cir. 2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

It should be recalled that Judge Panner's dramatic decision in US v. Detwiler (basics here, commentary here) found separation of powers problems with the federal sentencing structure as a result of the passage of the Feeney Amendment.  The declaration in Detwiler of the SRA's unconstitutionality is distinct from the Sixth Amendment issues addressed in Booker and, as explained here, the Detwiler ruling could have consequences even more far reaching than Booker.  Thus, I view the Third Circuit's acknowledgment that the "Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta" to be quite significant.

UPDATE:  The Third Circuit Blog discusses Pojilenko here.