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December 9, 2005

Fifth Circuit officially rejects retroactive application of Booker

The Fifth Circuit has, through its decision in US v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005) (available here), joined circuit bandwagon in declaring that Booker is not to be applied retroactively.  Providing a thorough analysis of all the basic doctrinal issues (but not acknowledging any academic commentary to the contrary), the Gentry court ends its analysis with this concluding paragraph:

In In re Elwood, we held that Booker may not apply retroactively to cases on collateral review for purposes of a successive § 2255 motion. Elwood, 408 F.3d 211 (5th Cir. 2005).  Now, we join the several courts of appeals that have held that Booker does not apply retroactively to initial § 2255 motions. Because we hold that Booker does not apply retroactively to Gentry's motion, Appellant's motion fails.

A final footnote in Gentry cites to similar decisions from the 2d, 3d, 6th, 7th and 11th Circuits.  I also believe that the 4th, 8th, 9th and 10th Circuits have also formally rejected claims for Booker retroactivity.  I wonder how much longer we will have to wait for the last non-retroactivity shoes to drop from the 1st and DC Circuits.

December 9, 2005 at 03:37 PM | Permalink


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Tracked on Apr 24, 2006 11:33:15 PM


The 5th Cir. utterly dodges the main issue by failing to discuss whether the BARD standard enhances accuracy.

Posted by: anonymous | Dec 10, 2005 12:09:12 AM

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