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Sentencing Law and Policy
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Lots more on Booker from the Sixth Circuit

By Douglas Berman

A day without a Booker opinion from the Sixth Circuit is almost like a day without sunshine.  Though yesterday was cloudy, the sun is shining brightly today with a lot of interesting Booker developments.  Here are the highlights:

First, I see from this new opinion that the Sixth Circuit has decided to “publish” its decision from two weeks ago in Hines (discussed at length here).

Second, in US v. Hazelwood, No. 03-6232 (6th Cir. Feb. 23, 2005) (available here), the court orders resentencing after finding an error in the calculation of the defendant’s guideline range.  The Hazelwood court explains that “regardless of whether the Guidelines are mandatory or merely advisory, district courts are required by statute to consult them, and … a district court’s misinterpretation of the Guidelines effectively means that it has not properly consulted the Guidelines.”

Third, in the unpublished ruling of US v. Gonzales, No. 03-4297 (6th Cir. Feb. 22, 2005) (available here), the court provides this one paragraph explanation of for ordering a Booker remand (which is provides a stark contrast to the Eighth Circuit’s work in the comparable Little Dog discussed here):

The sentence in this case was based on an offense level of 20 calculated from the jury verdict plus a 14-level “career criminal” sentence enhancement based on the two prior convictions.  Under Booker and Fanfan, prior convictions may be used as upward adjustments without violating the Sixth Amendment prohibition on adjustments based on judicial fact finding.  Booker, 125 S. Ct. at 756; accord Oliver, 2005 WL 233779 (6th Cir. Feb. 2, 2005).  Even so, Booker and Fanfan establish that the Guidelines are now advisory as to all sentences. Since the mandatory element of the Guidelines has been removed, leaving the sentence to the reasonable discretion of the District Court, Judge Dowd may no longer approve of the 22-year sentence which he was required to impose in this case. This inference is particularly strong here, where he sentenced the defendant at the bottom of the Guideline range.  It is unclear what sentence he might impose if not bound by the career criminal provisions of the Guidelines.

Finally, in US v. May, No. 04-4314 (6th Cir. Feb. 23, 2005) (available here), Booker does not even get mentioned as the court affirms a guidelines sentence in which the defendant appealed district court’s failure to downward depart on a claim of sentence entrapment.  Given the reasoning on the just mentioned Gonzales case, the Booker-free May affirmance might be questioned (although perhaps counsel in May failed to make a Booker claim on appeal).