The 6th Circuit speaks on plain error!

Joining the Fourth Circuit which last week came to a similar conclusion in Hughes (basics here), this morning the Sixth Circuit has held in US v. Oliver, No. 03-2126 (6th Cir. Feb. 2, 2005) (available here), that “the district court plainly erred by applying the federal sentencing guidelines as mandatory rather than advisory and thereby sentencing Oliver beyond the sentencing range which the jury verdict and Oliver’s criminal history supported.” 

The Oliver opinion has a lot of interesting language about how courts should be sorting through cases post-Booker, and a footnote distinguishing the Supreme Court’s “plain error” ruling in US v. Cotton, 535 U.S. 625 (2002), seems especially noteworthy.  These lines in that footnote particularly caught my eye:

Provided that a district court judge metes out a sentence which constitutes a reasonable application of 18 U.S.C. § 3553(a), the sentence may diverge from the applicable guideline range.  Thus, even if we conclude that the evidence is “overwhelming and essentially uncontroverted” we cannot know the length of imprisonment that the district court judge would have imposed pursuant to this evidence following Booker.  We would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given Oliver the same sentence post-Booker.

With the Oliver ruling, we now have two unanimous panels of two purportedly “conservative” circuits finding Booker errors to constitute “plain error” (which means they lead to reversal even if the issue was not raised in the district court).   I would expect this may soon become a consensus view in all the circuits (though, especially after the Booker ruling, I now take nothing for granted concerning court rulings in this area).