SG is seeking cert. on plain error!

As revealed by the week-in-review post below, I was ready to pack it in for the day a few minutes ago.  But, a last check of e-mail brings news of a big filing by the Solicitor General in the Supreme Court concerning the Booker plain error mess.  Specifically, in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit (details here and here), the SG has responded to the defendant’s cert. petition by saying review is warranted.  Here is the key opening paragraph in the filing you can download below:

Petitioner contends that this Court’s review is warranted to resolve a conflict in the circuits on the proper application of the plain-error standard to forfeited claims of sentencing error under Booker. The court of appeals in this case correctly held that petitioner was not entitled to relief on his unpreserved Booker claim, and the conflict in the circuits involves a transitional issue that may have limited continuing importance once the cases in which sentences were imposed before Booker have become final.  Nonetheless, the multi-circuit conflict on the issue is deep and real, and it implicates issues concerning the proper conduct of Plain-error review that could recur in other contexts.  Accordingly, this Court’s review is warranted.

Because I have tickets to see Revenge of the Sith this evening, commentary may have to wait on this big development that I’m calling Revenge of the BIPP (Breyer’s Incomprehensible Pipeline Paragraph).  In the meantime, readers are urged to use the comments to weigh in on this interesting development.

Download rodriguez_041148_resp.pdf

UPDATE: Lyle Denniston at SCOTUSblog provides this post with background on the facts of Rodriguez and the development of the plain error issue.  Also, in this post way back in February, I discussed the original cert. petition filed by the firm Jones Day.  That petition, which is now a bit dated due to all the subsequent circuit developments, is available at this link.