In today’s great episode of how the Sixth Circuit turns…

If Court TV ever decides to create a legal soap opera, the plain error developments in the Sixth Circuit as it sorts through Booker cases would make a great story line.  As in a great soap opera, we get a new episode with a new twist each day; today’s installment comes in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (available here).  Joyfully, this episode of the soap opera is a legal treat to watch, unlike a few prior episodes which made me cringe a bit. (Readers not fully engaged by the following long account of Barnett are still encouraged to ruminate in the comments about which actors ought to play which justices and judges in a Booker-inspired soap opera.)

Barnett is wonderful for many reasons, most notably because, in a split 2-1 vote, the Sixth Circuit carefully explains its remand for resentencing due to Booker even through the court holds, based on the prior conviction exception, “that there was no Sixth Amendment violation in the present case.”  Writing for the majority, Judge Martin explains that, because “Barnett did not challenge his sentence on [the ground that the guidelines were mandatory] or any other ground before the district court[,] we review the district court’s decision for plain error.”  Moving swiftly to the third (prejudice) prong of plain error, Judge Martin thoughtfully explains why this “is an appropriate case in which to presume prejudice under the Supreme Court’s decision in Olano:“

Instead of speculating as to the district court’s intentions in the pre-Booker world, and trying to apply those intentions to predict the same court’s sentence under the post-Booker scheme, we are convinced that the most prudent course of action in this case is to presume prejudice given the distinct possibility that the district court would have imposed a lower sentence under the new post-Booker framework and the onerous burden he would face in attempting to establish that the sentencing court would have imposed such a sentence.

This is not to discount the possibility, however, that in other cases the evidence in the record will be sufficient to rebut the presumption of prejudice.

In this thoughtful discussion and also in finding the fourth prejudice prong satisfied, the Barnett court draws significantly from the Fourth Circuit’s work in Hughes and the Second Circuit’s work in Crosby.  The court also concludes by noting that, “because we have concluded that the district court committed plain error in this case, that error cannot constitute ‘harmless error.'” 

Judge Gwin, an Ohio district judge sitting by designation, concurs to thoughtfully explain why he believes that, in addition “to the majority’s reasons offered for remand, two additional considerations warrant remand.”  His opinion is a great read, and includes an interesting discussion of the appropriateness of remand “in light of one of the underlying purposes of the plain error doctrine: the economy of judicial resources.”  Among other astute points, Judge Gwin notes that in many plain error precedents “appellate courts declined to remand, because to retry a case would be to expend a great amount of resources [but] where a re-sentencing is at issue, the costs are far less.”  Drawing on his own experiences, Judge Gwin says “[h]aving presided over hundreds, if not thousands, of sentencings, I believe the time devoted to post-Booker re-sentencing would be small.”

Chief Judge Boggs is not convinced, and he adds a number of additional rich insights to the discussion.  Here is his summary of his dissent on the plain error issue, which emphasizes that the district judge sentenced Barnett to the middle rather than the bottom of the calculated guideline range:

I agree with the court’s conclusion that the district court’s use of the pre-Booker sentencing rubric was plainly erroneous in light of present law, but I do not believe Barnett has shown the error prejudiced his sentencing.  First, as a factual matter, I believe the record indicates the district court felt the sentence was fair and would therefore give the same sentence post-Booker.  Second, as a matter of law, I believe the court errs by concluding that we should reverse when the record is silent as to prejudice.