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Sentencing Law and Policy
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Circuits keeping Booker busy

By Douglas Berman

With my sentencing focus having been Shepard-ized this week (Shepard basics are summarized here, commentary here and here), I have gotten a bit behind tracking Booker action in the circuits.  But a quick check on-line reveals that the circuits have already rendered nearly a dozen Booker rulings this week. 

The only especially noteworthy rulings result from the DC Circuit’s first foray into the Booker world (discussed here) and the Tenth Circuit’s discussion of retroactivity (discussed here), which are cover in other posts.  Here is a quick run-down of what’s come this week from other circuits (in addition to the Sixth Circuit’s ruling in Hamm discussed here):

The Third Circuit through US v. Kleinpaste, 2005 WL 524949 (3d Cir. Mar. 07, 2005), continues its trend of kicking all Booker issues back to the district courts, stating simply “the sentencing issues appellant raises are best determined by the district court in the first instance.”

The Fourth Circuit maintains its fidelity to its Hughes approach to plain error by remanding for resentencing in US v. Johnson, 2005 WL 526889 (4th Cir. Mar. 08, 2005).  However, in US v. Pierce, 2005 WL 523364 (4th Cir. Mar. 07, 2005), the court affirms a sentence because the defendant only challenged its computation and not its constitutionality, which prompts Judge Gregory in dissent to assert that the court should “sua sponte recognize the plain Booker error in this case.”

The Eighth Circuit in two cases, US v. Edwards, 2005 WL 517019 (8th Cir. Mar. 07, 2005) and US v. Cotton, 2005 WL 525226 (8th Cir. Mar. 08, 2005), affirmed sentences involving the revocation of supervised release, and stated in Edwards that Booker‘s “effect on sentences imposed for supervised release violations is far less dramatic” than its impact on standard guideline sentencing.

The Ninth Circuit in US v. Luna, 2005 WL 518721 (9th Cir. Mar. 07, 2005), determined that the district court properly calculated the defendant’s guideline sentence, but still remanded “for discretionary reconsideration of the sentence in light of Booker and Ameline.”