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Plain error Booker circuit review

February 22, 2005

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.