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Thursday, February 17, 2005

3rd Cir issues orders regarding Booker letters

The 3rd Circuit has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less. The order further requires that the letter "must succinctly state the factual and legal basis of the challenge. The letter may not contain argument. Cf. Fed R. App. P. 28(j). . . . Further briefing will be permitted only at the court's direction."

These letters have been sent out in cases in all different procedural postures, and thus it appears the Circuit will be using these letters as the primary means of screening cases for remand under Booker. It is not clear whether we can still expect a broad policy opinion addressing Booker and remands in the near future, but it now looks doubtful.

As to the distinction between stating the "legal basis" but not presenting "argument," it appears that the Court wants counsel simply to apply Booker to the facts of the case, and not to go into an explanation or discussion of what Booker held. In essence, the letter should state that Booker applies in this particular case because x, y, and z occurred at sentencing. The Court has read Booker and does not need argument about the reasoning in Booker.

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