The 11th Circuit addresses (small) Booker issues!

I had an inkling we might see some federal circuit court action on Booker before the end of this week, and now I can report that, in addition to the Eighth Circuit’s remand ruling in Coffey, not-so-casual Friday has also brought us two decisions from the Eleventh Circuit.  Both Eleventh Circuit rulings deal with relatively small issues, but they are still significant and consequential rulings

First, in US v. Rubbo, No. 04-10874 (11th Cir. Jan. 21, 2005) (available here), the Court denies an appeal (and blocks a Blakely/Booker claim) by upholding the applicability of an appeal waiver using contract principles to interpret the language of the plea agreement to keep the appeal waiver applicable. 

Second, in In re Anderson, No. 05-10045F (11th Cir. Jan. 21, 2005) (available here), the Court refuses to entertain a successive habeas petition based on Booker because, under the terms of the federal habeas statute, such a claim can only be brought after the Supreme Court expressly declares a decision retroactive (which, obviously, has not (yet?) happened).  This ruling is a direct echo of the 11th Circuit’s Dean ruling in the weeks after Blakely (basics here).  In the immortal words of Yogi Berra, it’s deja vu all over again.