A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit

In addition to the Sixth Circuit’s affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here).  A helpful reader sent me these astute observations about the Duncan opinion:

The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity…, but ultimately held that it was constrained by circuit precedent.