What might come of “plain error” rulings and other affirmances?

The First Circuit though its ruling yesterday in US v. Fraser, 2004 WL 2537410 (1st Cir. Nov. 10, 2004), maintained its status as a leader in affirming convictions over Blakely objections on plain error grounds. Prior discussion of the First Circuit’s “plain error” Blakely work can be found here and here and here and here.

The Fraser decision and the First Circuit’s “plain error” approach — as well as the steady stream of affirmances over Blakely objections coming from the Fourth and Fifth Circuits (which have, unlike the First, expressly held Blakely inapplicable to the federal system) — has me wondering what will happen to all these Blakely appeals if (when?) the Supreme Court officially declares Blakely applicable to the federal system in Booker and Fanfan. It would seem that, at that point, a Blakely error becomes plain, although waiver/forfeiture claims might still be made in particular cases.  Plus, as detailed in the Fraser case, a few of these affirmances assert — sometimes as a clear holding, sometimes in dicta — that the defendant’s Blakely claims would be unavailing even if Blakely applied to the federal system.

Not being a specialist in appellate procedure, I do not know if and how some defendants now losing in the Circuits might be able to get relief after Booker and Fanfan.  (Notably, the Second Circuit has been expressly stating, in every Blakely-related case it is now deciding, that the “mandate will be held pending the Supreme Court’s decision” in Booker and Fanfan.  Similarly, the Eighth Circuit is operating under an administrative orders that essentially holds all Blakely cases.)  Needless to say, if Blakely is held applicable to the federal system in Booker and Fanfan, sorting out all these “mid-stream” cases will be a huge task.