Circuit pacing, process and plans
Among the interesting stories to track in the post-Booker world is the pace and process through which the different federal circuit courts are considering and addressing the many legal questions issues that Booker has raised. Taking stock on a Friday afternoon, I count on-line roughly 30 circuit rulings which discuss Booker in some way, although a handful involve circuit courts just noting that the defendant has not raised a Booker claim.
Interestingly, three circuits (the First, Fifth and DC) have been completely silent to date, and three other circuits (the Third, Ninth and Tenth) have been “officially” Booker mute as these circuit have only issued a few unpublished decisions that briefly mention or address Booker. The other half of the circuits have been more vocal, with the Eighth Circuit setting the pace with six published and one unpublished decision, followed by the Second and Eleventh Circuits which each have produced four published cases mentioning Booker is some way. The Sixth Circuit, as detailed here, found a way to create a conflict between its two published dispositions, though it also has two unpublished Booker rulings. And the Fourth and Seventh Circuits both have one major ruling (the Fourth on plain error in Hughesretroactivity in McReynolds) to go with a few minor cases that mention Booker.
Also of interest, we can see from this notice that the Eighth Circuit has plans to address the issue of plain error through an en banc argument scheduled for March 9. And those in the know tell me that this notice shows that the Tenth Circuit likewise has made en banc Booker plans through arguments scheduled for March 7. In addition, as noted here, the Second Circuit clearly worked hard to speak with a coordinated vote through its Crosby decision, and I suspect some other circuits (though obviously not the Sixth on plain error) may be doing the same.
Of course, the disparate pacing, process and plans for Booker consideration will not be as worrisome as disparate results.