Notable 2d Circuit ruling on harmless error

While still trying to wrap my mind around the Supreme Court’s cert. grant today on Blakely harmless error in Washington v. Recuenco, I noticed that the Second Circuit in US v. Fuller, No. 04-4595 (2d Cir. Oct. 17, 2005) (available here) issued an interesting opinion on Booker harmless error.  Marking out a path that distinguishes the Second Circuit from, I believe, every other circuit, the Second Circuit in Fuller concluded that the announcement of an identical alternative sentence during the Blakely–Booker interregnum does not render Booker error harmless.  Here the Fuller opinion’s introductory summary:

We consider here whether a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) that was styled “in the alternative” — i.e., as the sentence of the Court regardless of whether or not the U.S. Sentencing Guidelines were binding — during the period after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), but before its decision in United States v. Booker, 125 S. Ct. 738 (2005), was error in light of the subsequent teachings of the Supreme Court and our related jurisprudence, and if so whether such error is harmless.  Because, with the benefit of hindsight, we conclude that the sentence amounted to error that we cannot deem harmless, we remand the cause to the District Court with instructions to vacate defendant’s sentence and resentence him in conformity with our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).