An intra-circuit split in the 6th Circuit on plain error!

I am in Milwaukee and being treated with wonderful hospitality despite the having called my locale the land of Laverne & Shirley last night in this post.  Part of that hospitality has included a chance to see a new great opinion in a case called Galvez-Barrios from Milwaukee’s own Judge Adelman (of Ranum fame, basics here), which I hope to be able to post later today.

But first, there is what seems to be an amazing development from the Sixth Circuit: an intra-circuit split on the analysis of plain error.  Recall that a panel of the Sixth Circuit yesterday in Oliver (discussed here) issued a bold plain error ruling which distinguished the Supreme Court’s Cotton decision and suggested that the court would have to remand for resentencing in pre-Booker cases involving unlawful judicial fact-finding “even if we conclude that the evidence is ‘overwhelming and essentially uncontroverted’.”   

But now I see that a distinct panel of the Sixth Circuit has ruled today in US v. Bruce, 03-3110 (6th Cir. Feb. 3, 2005) (available here) that there was no plain error in pre-Booker case by relying on Cotton and coming to the conclusion that “the evidentiary support for the district court’s findings on these [guideline enhancing facts are] sufficiently ‘overwhelming’ to defeat any claim that these findings ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.'”

The Bruce ruling goes on to note other reasons why it is not finding plain error, but I am not sure those reasons are sufficient to keep Oliver and Bruce from being in conflict.  (Notably, Bruce cited neither Oliver or the Fourth Circuit’s ruling in Hughes which takes a similar approach to Oliver.)

In short, everyone repeat after me: “Time to go en banc.”