The Fourth Circuit speaks on Booker!

After a seemingly calm day, the circuit action has cranked up again.  Thanks to helpful readers, I now can link to US v. Hughes, No. 03-4172 (4th Cir. Jan. 24, 2005) (available here), in which the Fourth Circuit, per Judge (and former US Sentencing Commission Chair) William W. Wilkins, finds “plain error in sentencing” and chooses to “exercise our discretion to notice the error, vacate the sentence, and remand to the district court for resentencing consistent with the remedial scheme set forth in Justice Breyer’s opinion for the Court in Booker.”

The Hughes decision has a lot of important language and dicta on remedial issues (some tucked into footnotes).  I will highlight here some language that catches my eye, and perhaps readers can add more:

Booker wrought a major change in how federal sentencing is to be conducted. As the law now stands, sentencing courts are no longer bound by the ranges prescribed by the guidelines. As long as a sentence falls within the statutorily prescribed range, the sentence is now reviewable only for reasonableness. Under the record before us, to leave standing this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings.  We therefore exercise our discretion to correct this plain error.[FN 8]

[FN 8] In determining whether the exercise of our discretion is warranted, it is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The fact remains that a sentence has yet to be imposed under a regime in which the guidelines are treated as advisory. To leave standing this sentence simply because it may happen to fall within the range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings. Indeed, the determination of reasonableness depends not only on an evaluation of the actual sentence imposed but also the method employed in determining it.

Moreover, declining to notice the error on the basis that the sentence actually imposed is reasonable would be tantamount to performing the sentencing function ourselves. This is so because the district court was never called upon to impose a sentence in the exercise of its discretion. That the particular sentence imposed here might be reasonable is not to say that the district court, now vested with broader sentencing discretion, could not have imposed a different sentence that might also have been reasonable. We simply do not know how the district court would have sentenced Hughes had it been operating under the regime established by Booker.