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Sentencing Law and Policy
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Intra-circuit split in the First Circuit

By Douglas Berman

While the Fifth Circuit today in Mares (basics here) made deeper the three-way circuit split on how to handle Booker plain-error claims, two judges today in the First Circuit issued a lengthy concurrence in US v. Serrano-Beauvaix, No. 02-2286 (1st Cir. Mar. 4, 2005) (available here) to explain why they are unhappy with where the First Circuit is located in the plain-error universe.

Judge Lynch writes for the court in Serrano-Beauvaix, and along the way she reiterates the circuit’s position, established last week in Antonakopoulos (basics here), that “the defendant must persuade us that there is a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new ‘advisory Guidelines’ Booker regime.”  The defendant in Serrano-Beauvaix did not meet this standard.

But, to add to our Booker fun, Judge Lipez, joined by Judge Torruella, adds a 12-page concurrence in which he urges the circuit to follow the Sixth Circuit’s plain error lead:

I agree with the result of the application of Antonakopoulos to this case. I write separately, however, to explain why, if I were free to do so, I would take a different approach to reviewing unpreserved claims of Booker error….

I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review.  Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut.  This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts “where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred.”