The active 6th and 11th Circuits stay Booker active

Continuing the Circuit trends noted here, the Sixth and Eleventh Circuits are keeping Booker busy (with decisions dated yesterday, but just made available today).

The Sixth Circuit’s decision in US v. Watts, No. 03-6124 (6th Cir. Feb. 10, 2005) (available here) is an unpublished disposition that avoids creating too much further plain error confusion by simply citing both Oliver and Bruce when stating that, because of “judicial fact-finding undertaken in determining his sentence, . . . it is necessary that the district court reconsider defendant’s sentence.”   Appellate Law & Practice here astutely suggests that, with Watts, “the Sixth Circuit may have just given up trying to explain the results of cases involving plain error review in Booker cases.”

The Eleventh Circuit’s decision in US v. Frye, No. 03-16377 (11th Cir. Feb. 10, 2005) (available here) in sharp contrast talks through the Court’s decision to affirm the defendant’s sentence despite the fact it was imposed under mandatory guidelines.  The Eleventh Circuit concludes that “Frye in pleading guilty admitted the facts that support the enhancement of his sentence [and thus] there is no violation of the Sixth Amendment.”   The Eleventh Circuit then affirms the sentence in Frye without further discussion.

Concerning Frye, Appellate Law & Practice notes here that the Eleventh Circuit had to “extrapolate on things that the defendant admitted” to find no Sixth Amendment problem with the guideline enhancements applied in the case.  Moreover, and perhaps even more troublesome, the Eleventh Circuit does not conduct a harmless error review of the application of mandatory guidelines in Frye’s case, which is what the final sentence of Justice Breyer’s remedial opinion for the Court in Booker seems to suggest is applicable in a case of this sort (as the Tenth Circuit explained last week in Labastida-Segura last week (detailed here)).