Another important (and opaque) 3d Circuit remand

A reader pointed out that I missed an important (published) remand from the Third Circuit in my review of all the late week Booker action from the circuits (detailed here and here and here and here).  As in its unpublished Mortimer ruling, the Third Circuit’s Booker disposition in US v. Davis, No. 02-4521 (3d Cir. Feb. 11, 2005) (available here), does not provide much factual background or legal analysis.  Yet, the one paragraph Booker discussion in Davis hints that the Third Circuit might be employing the broadest remand standard of any circuit.  Here is the entire Booker discussion appearing on the last page of the Davis opinion:

Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.

Reading Mortimer and Davis together, I am inclined to think that the Third Circuit has decided to remand every Booker claim without even bothering with plain error review. (The Third Circuit Blog comes to this same basic view here based on just the Mortimer ruling.)  Of course, if it is the Third Circuit’s plan to remand every case, it ought to make that clear.

As I hope to explain in a later post, I think a circuit plan to remand all sentencing cases still on direct review that were imposed under mandatory guidelines might be the most just and efficient way to deal with the Blakely/Booker pipeline cases.  In other words, I believe it would be most prudent for the circuits to generally forgo using prudential doctrines to affirm sentences imposed under the old mandatory guidelines system.