Another Booker ruling from the Sixth Circuit

Continuing to set the Booker pace (and continuing to make my head spin), the Sixth Circuit gave us another take on Booker review with its decision Tuesday in US v. Murdock, No. 03-1811 (6th Cir. Feb. 15, 2005) (available here).  The main Booker part of the opinion reaches the conclusion that Murdock’s sentencing enhancement was not Blakely problematic because it involved a legal conclusion based on facts admitted by the defendant through his plea.  Then the court explains:

We note that “[t]here may be some federal criminal defendants whose cases were on direct review at the time the Supreme Court issued Booker who are entitled to remand even though their sentences are consistent with the Sixth Amendment.” United States v. Milan, No. 02- 6245/6302 (6th Cir. Feb. 10, 2005), slip op. at 8.  This opinion should not be read to foreclose a defendant’s argument, in the appropriate case, that this Court should vacate and remand his sentence on the ground that the district court regarded the Sentencing Guidelines as mandatory at the time of his sentencing.  However, Murdock has made no such argument in this case, and we decline to do so on his behalf.

I read this passage to hold that Murdock essentially forfeited a claim based on what I have called here the “statutory error” which arose from the pre-Booker (and now improper) mandatory application of the guidelines in his case.  However, as I reader Booker, the Sixth Circuit after this finding still had an obligation to review Murdock’s sentence under the new 3553(a)-defined reasonableness, which it did not do.