Two for Tuesday from the First Circuit

As I suspected here, it appears that at least one Circuit took advantage of the long weekend to polish Booker opinions.  Specifically, the First Circuit today issued Booker rulings in US v. Antonakopoulos, 03-1384 (1st Cir. Feb. 22, 2005) (available here), and US v. Sahlin, 04-1324 (1st Cir. Feb. 22, 2005) (available here). 

Antonakopoulos is the big one, as the court begins by noting the decision sets forth “our standards for review of unpreserved claims of sentencing errors in the aftermath” of Booker:

To summarize our position at the outset, we intend to apply, in accordance with Justice Breyer’s admonition, conventional plain-error doctrine where a Booker error exists but has not been preserved.  The Booker error is that the defendant’s Guidelines sentence was imposed under a mandatory system.  The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.  A mandatory minimum sentence imposed as required by a statute based on facts found by a jury or admitted by a defendant is not a candidate for Booker error.  The first two Olano requirements — that an error exists and that it is plain at the time of appeal — are satisfied whenever the district court treated the Guidelines as mandatory at the time of sentencing.  But to meet the other two requirements — that this error affected defendant’s substantial rights and would impair confidence in the justice of the proceedings — we think that ordinarily the defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new “advisory Guidelines” Booker regime…. We engage in case by case review and we reject certain automatic reversal rules.

Sahlin also merits attention, since it purports to “consider the effect of the Supreme Court’s decision in Booker in cases involving guilty pleas.”  In that context, the First Circuit rejects “Sahlin’s claim that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by Booker.”