Booker remand in the First Circuit

As noted by Appellate Law & Practice here, the First Circuit today in US v. MacKinnon, No. 03-2219 (1st Cir. Mar. 16, 2005) (available here) remands for re-sentencing on Booker grounds, applying the plain error standards that the circuit established in its Antonakopoulos decision (discussed here) which requires the defendant to show he was prejudiced by the application of mandatory guidelines.  (Background on the circuits approaches to plain error is here.)

The defendant in MacKinnon was able to make such a showing based in part on this statement by the sentencing judge at the defendant’s pre-Blakely sentencing:

“I have worked hard on the memorandum and tried to figure out some way under the law in which the sentence could be reduced. I can’t do it. And although I totally disagree with our government’s policies at this stage concerning sentencing, I am bound to obey my oath and to do this according to principle, knowing all the time that this is an unjust, excessive and obscene sentence.”