5th Circuit discusses Booker resentencings

On Monday, the Fifth Circuit had an opportunity in US v. Scroggins, No. 03-30481 (5th Cir. June 6, 2005) (available here) to discuss the nature of resentencings under Booker.  Though the case has a complicated history and though the Fifth Circuit’s opinion is somewhat opaque, Scroggins is notable for its discussion of a number of important Booker resentencing issues. 

First, Scroggins rejects the defendant’s contention that due process/ex post facto principles restrict application of the Booker remedy and thereby requires that resentencings be based only on Blakely-compliant facts.  But then Scroggins also rejects the prosecution’s contention that certain guideline enhancements that had been affirmed on appeal pre-Booker could not now be reconsidered by the district court.  Here are selections from Scroggins‘s account of what should now transpire at resentencing:

The district court may, should it deem it appropriate, reconsider its determinations that Scroggins was a leader or organizer and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determination under an advisory, non-mandatory, guidelines system….

We hold that, under the particular circumstances of this case, the district court may also, in its discretion, hear and consider evidence as to Scroggins’s role in the offense under section 3B1.1 of the Guidelines and whether he obstructed justice under section 3C1.1 of the Guidelines.  The court may also hear evidence bearing on whether or not — notwithstanding that the Guidelines (and pertinent Sentencing Commission policy statements) must be considered and taken into account — a non-guideline sentence would be more appropriate in light of the other factors and considerations set out in Justice Breyer’s Booker opinion.