Pondering the “Booker boomerang”

I recently received news from a federal defense attorney reporting on a drug case in which a higher sentence was imposed on his client after a Booker remand.  In his words, “Booker seems to be having a big negative boomerang effect on defendants fortunate enough to get the Booker remand.” 

More evidence of this phenomenon comes from this notable article about a Booker resentencing in a high-profile corporate fraud case: “Former Westar Energy executive David Wittig was resentenced Monday to 60 months in prison in a 2003 bank fraud case, nine months more than his original sentence in the matter.”   (As explained in the article and posts here and here, Westar executives have made a lot of sentencing news.)

These reports have me wondering yet again about whether the US Sentencing Commission is trying to track and assess all the Booker pipeline cases as they slowly work through the system.  Notably, Judge McConnell’s recent Booker article (discussed here) has some fascinating statistics about Booker pipeline cases in the Tenth Circuit, and I sincerely hope folks at the USSC and elsewhere are trying to assemble and analyze this data throughout the nation.

I question whether there truly has been a “big negative boomerang effect on defendants” nationwide from Booker remands, though maybe this is true for certain types of cases or in certain regions (especially since the plain-error remand rules varied from circuit to circuit).  Of course, these issues are not only important on their own terms, but they can inform what we should expect if any other big sentencing changes from Congress or the Supreme Court create another set of sentencing pipeline problems.