The Third Circuit is continuing to take a broad approach to remanding cases for resentencing under Booker, without the need for any express consideration of plain error or harmless error. The Circuit appears to have concluded implicitly that most sentencings that took place before Booker (and therefore under the binding guidelines) meet the test for plain error since one can never know what sentence the district court judge would have imposed under the now advisory guideline system implemented by Booker.
In each case involving a Booker remand, the Court has included some variation of the following statement: "In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker." In addition to the Ordaz and Davis decisions discussed below, the Circuit has recently remanded for resentencing in the following unpublished and not precedential cases (click on case to pull up the decision): US v. Nayef Yousef (2/22/05); US v. Arthur Able (2/24/05); US v. Edwin Marquez (2/28/05); US v. Vivian Wells (3/3/05).
US v. Able is particularly noteworthy since it does not appear to have involved any Sixth Amendment violation under Booker, and the defendant was sentenced at the top of the guideline range of 18 to 24 months. Nonetheless, the Circuit, noting that "the district court clearly treated the Sentencing Guidelines as mandatory rather than advisory," did not find that the error of applying the mandatory guideline range was harmless, but instead remanded so that the district court could determine the sentencing issues "in the first instance."