Plain error Booker circuit review
With the First Circuit joining the plain error fun with it decision today in Antonakopoulos (basics here), I think we now officially have at least half of the circuits officially weighing in concerning the application of plain error to pipeline cases in which the defendant did not raise a Blakely/Booker issue at sentencing. Though these rulings cannot be easily summarized, I will try in very short space to provide a run down of where plain error stands, circuit-by-circuit:
1st: Antonakopoulos provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.
2nd: Crosby provides for remands for reconsideration so district court can speak to prejudice.
3rd: No direct consideration of issue but a distinct pattern of remands.
4th: Hughes provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants.
5th: Silent.
6th: Oliver (which now rules the roost) provides for a more liberal plain error standard which seems likely to be satisfied by most defendants.
7th: Silent.
8th: Silent, but an en banc consideration is in the works.
9th: Ameline provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants. (Government’s en banc motion pending.)
10th: Silent, but an en banc consideration is in the works.
11th: Rodriguez provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.
DC: Silent.
I am doing this mostly from memory, so I may have missed something that I trust commentors will fix. Also, I am certain that this summary review glosses over many nuances in all the holdings.