« A bit of death in the afternoon | Main | Michigan Blakely case to be argued on Tuesday »

November 7, 2005

Fourth Circuit addresses Booker retroactivity

I just got word from a helpful reader that the Fourth Circuit today just released an opinion in US v. Morris, No. 04-7889 (4th Cir. Nov. 7, 2005) (now available here), addressing the retroactivity of Booker.  As I dash off to class, I barely have time to reproduce the opinion's first paragraph and promise commentary later:

Debra Lynn Morris appeals the district court's order denying her 28 U.S.C. § 2255 motion for relief from her conviction and sentence. Morris argues that her sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005), because the district court increased her base offense level using facts that she did not admit and that were not found beyond a reasonable doubt by a jury.  We granted a certificate of appealability to consider whether Morris may raise a Booker claim for the first time in her § 2255 motion when her judgment of conviction became final before the Supreme Court decided Booker.  Nine circuit courts of appeals have considered this issue and have held that Booker does not apply retroactively to cases on collateral review. We agree with these courts, and we therefore affirm the district court's order.

UPDATE: Having now read Morris, I can comment that the decision presents a thorough review of all the standard steps for declaring that Booker is not to apply retroactively.  And, in so doing, the Fourth Circuit makes this statement about Booker that many federal defendants likely find (too) accurate: "the practical net result of Booker is minimal."

November 7, 2005 at 02:39 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fourth Circuit addresses Booker retroactivity:


I agree. Post appeal cases goes no where Pre appeal cases gets you another shot at the Sentencing Judge under the advisory instead of mandatory guidelines with out a jury findings beyond a reasonable doubt for enhancements contained in the guidelines. Perhaps the sixth amendment will raise its head again in the Supreme Court regarding judge findings instead of jury findings in sentencing for conduct not charged or because the bad acts could not be proven beyond a reasonable doubt. i.e. lost or intended loss, obstruction, leader, etc. Most if not all persons pleading guilt to one count and being sentenced on multi counts without admitting or proof beyond a reasonable doubt a structural constitutional violation of 6th amendment rights and fifty and possible due process. a citizen

Posted by: seaton | Nov 8, 2005 6:02:38 AM

How sad that any court -- or any lawyers in the federal criminal justice system on either side -- should think the impact of Booker is minimal. A change from a system where a sentence within rigid and punitive guidelines is virtually mandatory (but for a hamstrung "departure" power) to one where the judge is legally *obligated* to impose the least sentence which is sufficient to achieve traditional penological goals, after merely "considering" almost a dozen factors, of which the guideline range is but one, does and should have a *major* practical (generally favorable) impact on many, many defendants' sentences. If it doesn't, it can only be because the lawyers are not arguing effectively in light of Booker, or the courts are not sincerely implementing and enforcing it.

Posted by: Peter G | Nov 8, 2005 12:36:31 PM

Peter G says that if _Booker_ is having minimal impact "it can only be because the lawyers are not arguing effectively in light of Booker, or the courts are not sincerely implementing and enforcing it." It certainly appears that it's the second reason, at least from my experience.

Posted by: JDB | Nov 8, 2005 1:40:02 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