The 11th Circuit Speaks (again on plain error)!

In a decision seemingly dated August 15 but filed today (and citing a decision on August 16), the Eleventh Circuit in US v. Duncan, No. 03-15315 (11th Cir Aug. 18, 2004), decided as they had previously suggested in a footnote in US v. Curtis (background here), that the state of the law after Blakely is not “plain” and thus a Blakely problem does not constitute plain error. Here’s some of the key language:

In the instant case, neither the Supreme Court nor this Circuit has resolved the issue of whether Blakely applies to the Federal Sentencing Guidelines, and as indicated above, the circuits that have addressed the issue are not all in agreement. Indeed, the majority of circuits that have addressed the issue reject Duncan’s position that Blakely applies to the Guidelines. Thus, Duncan cannot satisfy the second prong of the plain error analysis.

This decision is noteworthy for many reasons, including that it moves the Eleventh Circuit, without an express holding, pretty close to joining the new majority position in the circuits that Blakely is inapplicable to the federal guidelines. In addition, the Duncan opinion takes some swipes at the Eighth Circuit’s (now vacated) panel decision in Pirani finding a Blakely error to be plain:

We do not agree with the Pirani panel’s dismissal of the Fifth Circuit’s opinion [upholding the federal guidelines]. While we need express no opinion on whether we actually would reach the same conclusion as the Fifth Circuit if a Blakely challenge was properly before us, we believe that the Fifth Circuit’s view is rational–i.e. a reluctance to find that Blakely has undone years of Supreme Court precedent focusing on the maximum sentence as stated in the United States Code. We believe this is a rational view despite the fact that other circuits, although not the majority, have held that Blakely has in fact undone this established understanding.