Notable Booker exploration from the 8th Circuit

It seems that even the federal holiday of Columbus Day cannot keep the Eighth Circuit from exploring the new world of Booker sentencing.  Of the various dispositions detailed on this official opinion page, the most notable is the en banc decision in US v. Mooney, No. 02-3388 (8th Cir. Oct. 10, 2005) (available here).  Blakely fanatics may recall that Mooney was the case in which, during summer 2004, an Eighth Circuit panel found Blakely applicable to the federal guidelines.  That panel ruling was ultimately undone by the Circuit's decision to go en banc and now, over a year later, Mooney's sentence is affirmed thanks to the intervening Booker decision.

Most of Mooney is a debate over loss calculations and the application of the circuit's approach to Booker plain error.  On this plain error issue, Judge Bright writing in dissent gets in some good shots:

I urge the Supreme Court to resolve the circuits' split on this issue, to eliminate the geographic crazyquilt by which many criminal defendants, sentenced for similar conduct and crimes, receive dissimilar appellate treatment under Booker and, in many cases, disparate sentences.

[T]his circuit has said to defendants, in effect, "tough luck," and left it at that. Worse, the court has said that the single relevant objective fact that is likely to appear in the record – namely, a sentence at the bottom of the applicable guideline range – is not enough to indicate the requisite "reasonable probability" that the sentence would be lower under advisory guidelines. The court’s willingness to apply here a doctrine that purports to resolve claims of legal error by posing a question that cannot, in the nature of the case, be answered suggests only that the court does not want to bother with most cases of unpreserved Booker error.