Is the Booker plain error split now finally cert. worthy?

I have done a number of prior posts here and here and here pondering whether the Supreme Court will grant cert on a Booker plain error case to address the deep circuit divisions on the issue.  This past week’s developments — in which the Third Circuit finally explained en banc in Davis its rationale for sending nearly all Booker pipeline cases back for resentencing (detailed here) while the Eighth Circuit en banc in Pirani adopted perhaps the toughest possible approach to various “pipeline” issues (detailed here) — has only ripened the plain error conflict and further spotlighted the dramatically different “pipeline” justice that federal defendants are receiving in the wake of Booker.

Notably, Judge Heaney closed his Pirani dissent, just like Judge Lucero from the 10th Circuit in Gonzalez-Huerta (as noted here), with a call for Supreme Court action on plain error:

The stated goal of the Guidelines was to create “a system that diminishes sentencing disparity.” Booker, 125 S. Ct. at 759.  This goal is undermined when circuits apply different standards in determining whether a defendant sufficiently preserved his Sixth Amendment sentencing challenge in the district court, and is further undermined when circuits differ on the question of how to deal with Booker claims on plain error review.  Hopefully, the Supreme Court will promptly resolve these differences, and do so in a manner true to the essence of Booker’s concern for basic rights of the defendant under the Sixth Amendment.

I have heard that the cert petition from the Eleventh Circuit’s Rodriguez decision is still being briefed, and I expect cert petitions are coming from defendants in Pirani and other circuit cases that have been tough on plain error.  What seems less predictable is whether DOJ will seek cert in Davis (or in Ameline from the Ninth Circuit if, as has been predicted to me, the government does not get a complete win in that en banc case). 

As I have discussed before here and here, plain error presents only a transition problem that the Supreme Court, because of its briefing and argument schedule, likely would not be able to resolve anytime soon.  Consequently, I could imagine DOJ deciding plain error is not worth a protracted SCOTUS fight, especially since there are so many more important long-term post-Blakely and post-Booker to focus upon (e.g., the scope and future of the prior conviction exception or the meaning of appellate review for reasonableness).

Nevertheless, no matter how you look at it, the plain error division — which I called a three-ring circus in this post — is an ugly example of disparate justice.  And I was especially bemused to see Judge Bye in his Pirani partial dissent running with the circus metaphor:

The phrase “three-ring circus” (referring to the three-way circuit split) has been used to describe the federal circuits’ disparate handling of Booker pipeline cases.  Such a phrase is descriptive, nonetheless, it is probably more appropriate to characterize the split as a three-ring circus with twelve unique acts each attempting to dazzle us with its compelling logic.  Yet, despite the unique nature of each act, like the conspicuous facial hair on the bearded lady, one common theme prevails — the undeniable difficulty in assessing the prejudice suffered by any particular defendant.