The 5th Circuit is silent no more!

Howard Bashman had the news (and my preferred title) first here at How Appealing: the Fifth Circuit has broken its surprisingly long Booker silence today (background here and here) with US v. Mares, No. 03-21035 (5th Cir. Mar. 4, 2005) (available here).  Here are the summary highlights:

Mares raised this [Booker] issue for the first time in his brief filed with us on direct appeal.  We agree with the Eleventh Circuit that our review is for plain error. United States v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.

UPDATE: Mares proves to be another case in which the court employed a quasi en banc process, as the court explains:

After circulating this opinion to all members of the court this panel has benefitted from and incorporated into the opinion many of their comments.

In addition, the Court in Mares goes out of its way to speak broadly to a range of post-Booker sentencing issues, noting that “we think it appropriate for us to explain at the outset how we understand the Supreme Court expects sentencing will proceed under its decision in Booker/Fanfan.”  In Mares this means, inter alia, the most direct state by a Circuit court that post-Booker judicial fact-finding is to look just like pre-Booker judicial fact-finding:

The Guideline range should be determined in the same manner as before Booker/Fanfan. Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing.  125 S.Ct. at 750, 764.  The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.

The Fifth Circuit in Mares also comes closest to suggesting that a sentence within the applicable guidelines will be per se reasonable:

If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines. Given the deference due the sentencing judge’s discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say such a sentence is “unreasonable.”