Sixth Circuit addresses retroactivity

Continuing to provide a daily supply of Booker rulings, the Sixth Circuit today in Humphress v. US, No. 03-5951 (6th Cir. Feb 25, 2005) (available here), issued its first opinion on retroactivity.  The Sixth Circuit in Humphress holds that Booker “does not apply retroactively to cases already final on direct review.”  As has been common in many such rulings, the Sixth Circuit relies heavily on the death penalty case Schriro, which concluded Ring was not retroactive. “Schriro‘s reasoning applies with equal force to Booker,” says the Sixth Circuit (although the court does not directly confront the fact that Schriro did not deal with the burden of proof issues, as detailed here).

The Sixth Circuit also had another (unpublished) plain error ruling today with US v. Cook, No. 02-1405 (6th Cir. Feb. 25, 2005) (available here).  As is the Sixth Circuit’s recent pattern, in Cook the court finds plain error and orders a remand for resentencing based on Booker.