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January 10, 2009

A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit

In addition to the Sixth Circuit's affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here).  A helpful reader sent me these astute observations about the Duncan opinion:

The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity..., but ultimately held that it was constrained by circuit precedent.

January 10, 2009 at 12:32 PM | Permalink


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If Mr. Duncan was sentenced after Blakely, then why didn't his sentencing counsel argue that the Guidelines are unconstitutional in light of Blakely? Had this issue been raised, he surely would have succeeded on direct review, given that Booker was issued just 6 months after Blakely.

Of course, SCOTUS didn't decide the issue until Booker and the en banc Sixth Cir. rejected holding so prior to Booker "for prudential reasons." Slip. Op. at 5. But, nonetheless, I don't know how the issue would not have been raised post-Blakely and/or preserved pending Booker's outcome.

I believe Booker/Fanfan cert was granted in late-July or early August, which means that the time period between Blakely and the cert grant was a little more than one month. Surely after cert was granted, all competent attorneys would have raised the issue at sentencing. So how many sentencings during that slightly more than one month time period did not raise the issue? My point is that even if Booker was retroactive to Blakely, it likely would affect a very small amount of individual's whose trial counsel failed to raise a "Blakely-issue" post-Blakely.

Posted by: DEJ | Jan 11, 2009 5:05:15 PM

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