Of sentencing note from the Eighth Circuit

Contributing to the manic Monday, the ever-active Eighth Circuit, which had been somewhat quite on the Booker front over the last week or so, jumped back into Booker action with a few notable sentencing rulings on Monday. 

Two of the opinions — US v. Norman, No. 02-3196 (8th Cir. Oct. 31, 2005) (available here) and US v. Zavala, No. 05-1355 (8th Cir. Oct. 31, 2005) (available here) — do not break any new ground, but they spotlight the critical consequences between review for plain error and review for harmless error.  The defendant in Norman arguable has a better case on the equities, but he does not prevail on appeal because of the Eighth Circuit’s tough plain error standard; the defendant in Zavala does secure resentencing because the government could not show the Booker error was harmless.

A third opinion, US v. Meyer, No. 04-4166 (8th Cir. Oct. 31, 2005) (available here), seems to break some new ground by holding that “[j]ust as it is error to impose a prison term based on the mistaken view that the guidelines mandate it, it is also a Booker error to impose a fine on the same basis.”  However, the exact rationale and reach of this holding is debatable.  Also debatable in Meyer is the court’s decision to order a Booker remand to correct a fine determination while apparently not allowing the district court to revisit its associated Booker-violative imprisonment term.