Fourth Circuit gives Booker plain error a new twist

There have not been many blockbuster Booker rulings from the circuit courts lately, but the Fourth Circuit gave a new twist to its Hughes approach to plain error today in US v. Smith, No. 03-4892 (4th Cir. Mar. 21, 2006) (available here).  In Smith, a divided panel relies on the fourth prong of plain error analysis to refuse a request for resentencing by one defendant.  The dissent correctly spots what makes this development noteworthy in the Fourth Circuit:

This case is the first post-Hughes case in which the Fourth Circuit has applied Hughes, held that a Booker Sixth Amendment violation took place, recognized that the record fails to reflect what Moore's sentence would have been under an advisory scheme, yet declined to exercise its discretion to notice the error, vacate the illegal sentence, and remand for resentencing.  Although declining to notice a Booker Sixth Amendment violation is not uncommon in those circuit courts that have adopted a different approach to analyzing plain-error issues arising from such Booker Sixth Amendment violations raised for the first time on direct appeal, the result in this case is materially inconsistent with Hughes and its progeny.

The Fourth Circuit Blog has more about this ruling here.