Important 11th Circuit ruling on Booker harmless error

While the plain error circuit split remains unresolved, a new Booker pipeline circuit split has now emerged in the application of harmless error as a result of the Eleventh Circuit's decision today in US v. Glover, No. 04-16745 (11th Cir. Nov. 29, 2005) (available here).  In Glover, a "statutory Booker error" was preserved and the government argued that the error was harmless because the sentencing judge (post-Blakely, but pre-Booker) imposed a sentence in the middle of the applicable guideline range.  Here's the Glover court's response:

Although we recognize that two of our sister circuits have ruled that a midrange sentence alone establishes that a statutory error was harmless, see United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005); United States v. Paxton, 422 F.3d 1203, 1207-08 (10th Cir. 2005), we disagree.... The government must do more than rely upon a mid-range sentence to satisfy its burden under the harmless error standard.

Glover is also interesting because of a special concurrence from Judge Tjoflat in which he emphasizes "the extent to which the pre-Booker sentencing model (under which Glover was sentenced) differs from the post-Booker model."