Sorting through the Circuit circus
Though I can barely find time to read all the circuit court Booker rulings (recently detailed here and here and here and here and here), my growing sense is that the appellate handling of “pipeline case” is a disparate mess. Of couse, given Justice Breyer’s opaque closing paragraph in Booker, this comes as no big surprise (I expressed my fear of a remedy mess here hours after Booker came down). But the situation seems to be developing into a (twelve-ring) circus that risks significantly undermining a federal sentencing system which is purportedly committed to administering equal justice.
To clarify my own thinking about the rapid-fire circuit dispositions, I have below outlined my own understanding of how Booker should be understood for pipeline cases now on appeal. I would be eager for readers to use the comments to provide feedback on my analysis.
The two types of Booker errors: I believe each part of the Booker opinion defines a different type of error. Justice Stevens’ opinion explains that there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt. Justice Breyer’s opinion explains that, given the Court’s finding of constitutional error, there was a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory with heightened attentiveness to the instructions of 3553(a).
Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory and was imposed without heightened attentiveness to the instructions of 3553(a). Indeed, the cases before SCOTUS define these realities: Booker’s sentence included judicial fact-finding so it involved both constitutional error and statutory error; Fanfan’s sentence was not based on judicial fact-finding so it involved only statutory error. Both cases were remanded for resentencing.
The Booker remedial instructions: In his final paragraph, Justice Breyer explains that “we must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.” I think that means that both constitutional and statutory errors must be recognized and remedied in all federal cases not yet final. However, Justice Breyer also suggests that reviewing courts will be able to “apply ordinary prudential doctrines” to ensure that not “every appeal will lead to a new sentencing hearing.” And here is how Justice Breyer explains the application of these prudential doctrines:
[Reviewing courts can determine] whether the issue was raised below and whether it fails the “plain-error” test. [And] in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
What I think Booker means for pipeline cases: Putting all these pieces together, I believe circuit courts, in cases with constitutional error, can and should apply plain error analysis if the Sixth Amendment was not raised below. However, even if the plain error standard is not satisfied OR if a sentence did not involve “a Sixth Amendment violation,” circuit courts still must, because of statutory error, apply harmless error analysis to determine if resentencing is still warranted AND also must review every sentence for reasonableness even if application of “ordinary prudential doctrines” makes resentencing unnecessary.