Applying Ameline all the time

The Ninth Circuit today, through an amended opinion in US v. Moreno-Hernandez, No. 03-30387 (9th Cir. Feb. 18, 2005), amended (July 5, 2005) (available here), clarified an important issue following the circuit’s adoption in Ameline of the “limited remand” approach to Booker plain error cases (basics here, commentary here).  In Moreno-Hernandez, the Ninth Circuit concludes that “a limited remand is proper in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or nonconstitutional.” 

In so holding, the Ninth joins the majority of other circuits treating all Booker plain error cases the same.  However, the Fourth and the Tenth Circuits have differentiated plain error cases based on whether a pre-Booker sentencing involved a Sixth Amendment violation in the form of judicial factfinding for a sentencing enhancement.  Given the Supreme Court’s recent decision  to reject cert in the Rodriguez plain error case from the Eleventh Circuit (basics here, commentary here and here), this split over whether to apply a unitary or binary approach to Booker plain error may never get resolved.