Plain error patterns persist

The plain-error story in the circuits continues to settle into the three-way circuit split, with the Fifth Circuit showing in its recent decisions that it will seriously require a defendant to make a prejudice showing to get a Booker remand.  In US v. Infante, No. 02-50665, 2005 U.S. App. LEXIS 4571 (5th Cir. Mar. 21, 2005), and US v. Pratt, No. 04-30446, 2005 U.S. App. LEXIS 4546 (5th Cir. Mar. 18, 2005), the Fifth Circuit noted that the district court had not sentenced at the bottom of the applicable guideline range to concluded that the defendant did not meet his plain-error burden.

Meanwhile, I see from this list of recent Second Circuit decisions that the court continues its Crosby remand approach.  See, e.g., US v. Gerancon, No. 03-1631 (2d Cir. Mar. 21, 2005) (available hereUS v. Rodney, No. 04-2925 (2d Cir. Mar. 21, 2005) (available here).  In addition, this morning brings three Booker remands from the Sixth Circuit.  See US v. Sawaf, No. 02-6169 (6th Cir. Mar. 22, 2005) (available hereUS v. Kosinski, No. 03-2414 (6th Cir. Mar. 22, 2005) (available hereavailable here).

Indeed, the plain error story is now getting a bit boring, although the DC Circuit’s brief entry into the story late last week in Smith was noteworthy.  Also, we are still awaiting rulings from en banc courts in the 8th and 10th Circuits, which heard arguments two weeks ago, and the 9th Circuit is due to have its en banc Ameline arguments this Thursday.