Rodriguez and Gov c.a.v. letters in Booker remand cases

In a number of 3rd Cir. appeals pending likely remand for resentencing in light of Booker, the government over the last month has filed letters requesting that the Circuit hold the cases under advisement ("curia advisari vult" or "c.a.v.") pending a decision from the Supreme Court in Rodriguez v. US, No. 04-1148.

Rodriguez is a case in which the 11th Circuit applied a very difficult plain error test to Booker pipeline cases, holding that remand would be granted for Booker plain error only if the defendant showed a reasonable probability that the judge would have granted a lower sentence under the an advisory guideline system. (The 3d Cir. plain error test is the most reasonable of all the circuits -- see Davis post on blog below.) The defendant petitioned for cert in Rodriguez, and the government in response basically agreed cert should be granted, since the circuits are split on the plain error standard.

These government c.a.v. request letters should now come to a quiet end, and the ones that were filed should be denied, since the Supreme Court yesterday (6/20/05) denied cert in Rodriguez. This denial of cert completely undercuts the government's argument for delaying the remands.

Alternative Sentences Constitute Harmless Error Under Booker

In United States v. Jaheed Hill, No. 04-3904 (3d Cir. 6/14/05), (click to open), the Third Circuit joined several sister circuits in holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the Guidelines, any error that may attach to a defendant's sentence under Booker is harmless.