Still more Booker wisdom from the Sixth Circuit

Today’s daily dose of Booker wisdom from the Sixth Circuit comes in the decision of US v. Milan, Nos. 02-6245/6302 (6th Cir. Feb. 10, 2005) (available here), which speaks on plain error and a host of interrelated issues in the course of vacating one defendant’s sentence and affirming another’s.  Both ruling are interesting and at times curious.

On plain error, after a long review of the basic legal standards, the Milan court remands one defendant’s sentence which had been calculated under the mandatory guidelines with reliance on judicial fact-finding.  And, at the end of this discussion, the court notes all recent circuit case law and explains why it thinks Oliver (6th Circuit) and Hughes (4th Circuit) take the right approach to plain error while Rodriguez (11th Circuit) and Crosby (2d Circuit) have it wrong:

In our judgment, a critical aspect of Booker has escaped the Eleventh and Second Circuits’ thinking on these matters — namely, that the Supreme Court remanded Booker’s case for resentencing.  It is certainly our obligation as courts of appeal to carefully consider what the Supreme Court said in Booker.  Nevertheless, we cannot ignore what the Court did.  At the very least, a remand for resentencing of Booker must rest on a decision that the error in his case was reversible, i.e., was not harmless and affected Booker‘s substantial rights…. In fact, as our colleagues observed in Oliver, we can safely conclude that, in the ordinary case, a Booker-type Sixth Amendment violation affects substantial rights. But the Supreme Court’s treatment of Booker’s case may suggest something more.  It turns out that Booker did not make a Sixth Amendment objection to his sentence in the district court. In fact, Booker’s Sixth Amendment challenge first appeared in a supplemental brief to the Seventh Circuit, which he filed soon after the Supreme Court’s decision in Blakely.  The Government pointed this out in its petition for certiorari, see Pet. for Cert., 2004 WL 1638204, at *3-4, but, inexplicably, the Supreme Court did not address whether Booker’s sentence was plain error. Yet the most reasonable reading of the Court’s disposition of Booker’s case suggests that the Court thought it was.  After all, in Booker, the Supreme Court quite explicitly instructs reviewing courts to determine whether an appealing defendant made a Sixth Amendment argument in the district court and to review for plain error if he did not. See Booker, 125 S. Ct. at 769. We cannot fathom why the Court would not follow its own instruction, although it may be for the simple, and strange, reason that the Seventh Circuit declined to address the question of plain error because the Government apparently did not raise the issue. See United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004).

For another defendant, however, the Sixth Circuit in Milan determines he “did not receive a sentence in excess of the maximum sentence authorized by the facts he admitted in his guilty plea,” and thus “is not entitled to resentencing on the grounds that his sentence violates the Sixth Amendment.”  The court then drops a footnote to indicate that some other defendants may still be “entitled to remand even though their sentences are consistent with the Sixth Amendment,” but the Court does not engage in the sort of harmless error analysis that Booker seems to countenance and that the 10th Circuit applied in a similar case to order resentencing in US v. Labastida-Segura last week (detailed here).