Third Circuit (unthinkingly?) applies pre-Booker ex post facto rules

In my view, the implications of Booker for pre-Booker ex post facto doctrines has been woefully under-examined.  The Seventh Circuit has given this important issue fitting attention in its Demaree opinion (details here), but other district and circuit courts (improperly) have taken for granted that Booker does not change the pre-Booker rules.

A decision today from the Third Circuit, US v. Wood, 06-1372 (3d Cir. May 17, 2007) (available here), provides the latest troublesome example of this dynamic.  The Wood panel, citing only pre-Booker precedents, decides that it was plain error for the district court, sentencing under so-called “advisory guidelines” in January 2006, to consider an enhancement that had been amended in 2004 because the defendant’s crime occurred before the amendment.  But, as the Demaree opinion effectively explains, this only makes sense if the guidelines have the force of law rather than just serving as advice.

I doubt the Claiborne or Rita opinions will address this intricate little issue, but for me it provides yet another example of how most courts and litigants have never fully come to terms with the real significance and import of Booker.