Are circuits overwhelmed by, or dickering over, Booker?

One fascinating aspect of the post-Blakely, pre-Booker federal sentencing world was watching the federal circuits approach legal issues and legal uncertainty in remarkably different ways.  And with the post-Booker circuit action now getting started (details here and here) and likely to continue this week, it will be interesting to see how different circuits handle both “pipeline” and future federal sentencing cases.

Though Justice Breyer said in Booker that appellate review would enhance uniformity, I expect we may see some circuit splits in the weeks ahead at least on “smaller” questions like plain error, waiver, harmless error, indictment practices, etc.  Moreover, since, as detailed here, soon after Blakely there was a five-way circuit split on the basic question of Blakely‘s applicability to the federal guidelines, we may also see some notable variation on the basic issue of what “reasonableness review” means.

An interesting and important backdrop to these matters concerns the practical dynamics of circuit court decision-making.  First, there is good reason to think the circuits are already a bit overwhelmed by the work in front of them.  (Evidence here comes from last week’s Second Circuit order halting supplemental briefing and a similar order making the rounds in the Ninth Circuit which states “Pending this court’s consideration of the applicability of the Supreme Court’s decisions in Booker/Fanfan to pending cases, counsel are directed not to file any supplemental materials or motions, including Rule 28(j) letters, unless specifically ordered to do so by this Court.”)

Second, federal circuit courts are large multi-judge institutions which typically make decisions in three-judge panels that are not always representative of the entire circuit.  Recalling that we saw interesting and rapid en banc action in some circuits after Blakely, I am wondering whether efforts are now afoot within circuit courts to try to speak to certain major Booker issues with a collective voice from the outset.