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July 25, 2005

Potent comments on preserving Booker error

The different ways that different circuits are treating Booker plain error remains highly consequential and highly visible as cases continue to move through the pipeline. But today's concurrence by the Eighth Circuit's Judge Heaney in US v. Coffey, No. 04-2176 (8th Cir. July 25, 2005) (available here) is a reminder of the different ways that different circuits are deciding whether a Booker error has been preserved. 

A number of circuits are applying liberal standards when considering whether a Booker error has been preserved, but the Eighth Circuit in its en banc Pirani ruling adopted a very strict rule for when a Booker error has been preserved.  In Coffey, the Eighth Circuit applied this strict standard to reject a Booker claim, which prompted Judge Heaney to complain about the Circuit's adopted standard with this sharp comment:

Coffey challenged his mandatory guidelines sentence in district court for essentially the same reason that the Booker court found the guidelines unconstitutional, yet that objection was not specific enough to preserve his Booker claim.  Instead, the Pirani majority required Coffey to either cite a case — Blakely — that was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held by our court en banc to have no application to the guidelines.  Where could such an absurd result stand?  Justice Scalia might reply, “Only in Wonderland.”  Booker, 125 S. Ct. at 793 (Scalia, J., dissenting).

July 25, 2005 at 02:09 PM | Permalink


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