More Booker wisdom from the 2d Circuit
Seeking to shed more light on the handling of pipeline cases, the Second Circuit has weighed in again, and again in an opinion by Judge Jon Newman, though US v. Williams, No. 04-2882 (2d Cir. Feb. 23, 2005) (available for download below). In Williams, Judge Newman purports to “amplify our reasons for the form of remand we have used in some pending cases with sentences that are erroneous in light of Booker.” Here are some choice quotes:
In short, there is no need to apply the plain error doctrine in the sentencing context with precisely the same procedure that has been used in the context of review of errors occurring at trial, whether civil or criminal. Moreover, we note that the Supreme Court has never applied the Olano formulation of the plain error doctrine to ignore a judge’s sentencing error that affected substantial rights, nor required a court of appeals to do so….
To avoid the deficiencies of either a routine affirmance or a routine remand for resentencing, we ruled in Crosby that we would normally remand for determination by the sentencing judge of whether a materially different sentence would have been imposed. This disposition avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing.