Hearding the Booker harmless error bullfrogs

As noted here, last week in McBride, Sixth Circuit Judge Boyce Martin had this colorful description of the litigation mess in the wake of Booker: "Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow."  Further proof of how jumpy the circuit bullfrogs can be comes today from the Fifth Circuit's ruling in US v. Woods, 04-11058 (5th Cir. Jan. 24, 2006) (available here).

Woods provides a terrific primer on Booker pipeline issues in the course of concluding that "a sentence imposed at the top of the Guidelines-determined range might be sufficient to prevent a defendant from prevailing under plain-error review, but not sufficient to demonstrate that a Booker error was harmless beyond a reasonable doubt."  In Woods, the Fifth Circuit explains why its position is consistent with the law in the Second and Seventh Circuits, but contrary to the approach of the Tenth Circuit (which it finds "less persuasive").