« More on a big SCOTUS sentencing day | Main | O Recuenco, Recuenco, wherefore art thou granted Recuenco? »

October 17, 2005

Notable 2d Circuit ruling on harmless error

While still trying to wrap my mind around the Supreme Court's cert. grant today on Blakely harmless error in Washington v. Recuenco, I noticed that the Second Circuit in US v. Fuller, No. 04-4595 (2d Cir. Oct. 17, 2005) (available here) issued an interesting opinion on Booker harmless error.  Marking out a path that distinguishes the Second Circuit from, I believe, every other circuit, the Second Circuit in Fuller concluded that the announcement of an identical alternative sentence during the Blakely-Booker interregnum does not render Booker error harmless.  Here the Fuller opinion's introductory summary:

We consider here whether a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) that was styled "in the alternative" — i.e., as the sentence of the Court regardless of whether or not the U.S. Sentencing Guidelines were binding — during the period after the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but before its decision in United States v. Booker, 125 S. Ct. 738 (2005), was error in light of the subsequent teachings of the Supreme Court and our related jurisprudence, and if so whether such error is harmless.  Because, with the benefit of hindsight, we conclude that the sentence amounted to error that we cannot deem harmless, we remand the cause to the District Court with instructions to vacate defendant's sentence and resentence him in conformity with our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).

October 17, 2005 at 05:17 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Notable 2d Circuit ruling on harmless error:


Look, the Second Circuit's view, while legally sound, is fundamentally pragmatic. A zillion people got sentenced under the wrong law. The Court didn't really want to consider the facts of a zillion cases. Why not just remand and let the district judge determine what he or she was best qualified to determine, whether the change in law would affect the sentence?

The position of the other circuits seems to me to be driven by something like the mindset of Mencken's Puritan -- the “haunting fear that someone, somewhere might be happy.” The courts seem obsessed by the "haunting fear that someone, somewhere" might get a lower sentence. They should loosen up. All this litigation is just about done in the Second Circuit, and the other circuits are still wallowing in it. They must have better things to do.

Posted by: David in NY | Oct 18, 2005 4:08:08 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB