3rd Cir Decision on Booker Remands

In US v. Kevin Davis (No. 02-4521, 4/28/05), the 3rd Circuit has finally issued a published opinion articulating its position regarding remands for resentencing in light of Booker. The Court held that in cases now on appeal that were sentenced before Booker in which there was no objection made to sentencing under the guidelines, for purposes of review for plain error, prejudice will be presumed and the cases will be remanded for resentencing. Thus, the test for plain error is met in any case in which the court followed the mandatory guidelines in imposing sentence. As the Circuit explained,

[W]e cannot ascertain whether the District Court would have imposed a greater
or lesser sentence under an advisory framework. But the mandatory nature
of the Guidelines controlled the District Court’s analysis. Because the
sentencing calculus was governed by a guidelines framework erroneously believed
to be mandatory, the outcome of each sentencing hearing conducted under this
framework was necessarily affected. Although plain error jurisprudence generally
places the burden on an appellant to demonstrate specific prejudice flowing from
the District Court’s error, in this context– where mandatory sentencing was
governed by an erroneous scheme– prejudice can be presumed.

The Court also concluded (quite reasonably) that from the standpoint of judicial economy, it makes much more sense to remand such cases for resentencing rather than to spend judicial resources endlessly litigating plain error issues, as other circuits are doing. The Court stated,

This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, “correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]” on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

New Booker Resources

The Federal Defender Office for the Eastern District of Pennsylvania has two new resources available for litigating Booker sentencing issues:
1) Booker Litigation Strategies Manual (April 20, 2005)
2) Model Sentencing Memorandum (post-Booker)

In addition, Fran Pratt, Research and Writing Attorney, Federal Defender Office, Alexandria, VA, has updated her Outline of post-Booker decisions. (April 17, 2005).

3rd Cir withdraws King

On April 19, 2005, the 3rd Circuit withdrew its unpublished decision in King, mentioned in the post below, and on April 25, 2005, the Court reissued the King opinion without the intriguing footnote 2. (But the new King opinion does include an interesting concurrence by Judge McKee regarding his concern that the district court may have been biased against tax offenders.) (King available here.)

Fascinating Footnote re Booker

As noted on Prof. Berman's blog, the Third Circuit in a not-precedential opinion, US v. King (No. 03-4715, 4/14/05), has attached a fascinating footnote about Booker which seems to say that the district courts cannot apply enhancements unless they were found by the jury beyond a reasonable doubt or admitted by the defendant. (The Circuit remanded for resentencing in light of Booker.) Here is the footnote:

FN. 2 Our discussion of the sophisticated means enhancement in no way suggests that a sentencing court must apply such an enhancement even where it might otherwise have been appropriate. It is clear that in the post Booker universe,
the district court is free to reject all such enhancements in the appropriate exercise of its discretion. Moreover, to the extent the sentencing court may decide to enhance a sentence based upon factors such as those incorporated into the sophisticated means enhancement, it must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable. That fact finder must be a jury unless a defendant waives his/her right to a jury trial.

3rd Cir Remands in light of Booker, even with appellate waiver

In US v. Herman Foman, No. 04-2508 (Apr. 7, 2005) (not-precedential), the Circuit remanded for resentencing in accordance with United States v. Booker, 125 S. Ct. 738 (2005). Although the opinion does not make any mention of it, the record reveals that the case involved a conditional guilty plea in which the defendant waived all of his appellate rights, except for the right to appeal the denial of his motion to suppress evidence. The appellate waiver language in Foman's plea agreement is identical to the broad appellate waiver language used in all plea agreements in the E.D. Pa. The Foman plea agreement reads in pertinent part as follows:

9. In exchange for the undertakings made by the government in entering this plea
agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, . . . except as provided in paragraph 8 above [relating to defendant's right to appeal from the denial of the motion to suppress].

United States v. Herman Foman, Crim. No. 03-486, "Guilty Plea Agreement" p. 8. (entered on docket for E.D. Pa. Feb. 19, 2004).

The government in Foman, moreover, argued in its letter response commenting on the applicability of Booker that "Foman waived his right to raise any Booker claim in the appellate waiver in his plea agreement." (Gov. Booker letter in US v. Foman, Mar. 24, 2005).

In spite of the appellate waiver covering sentencing issues, this Court nonetheless remanded Foman for resentencing in accordance with Booker. The Court did not address the appellate waiver, but instead only stated,

Having determined that the sentencing issues appellant raises are best
determined by the district court in the first instance, we will vacate the
sentence and remand for re-sentencing in accordance with Booker.

Although it is difficult to know how much, if anything, to read into a not-precedential opinion which does not give the court's reasoning, it would appear the Circuit quite reasonably concluded that the Booker issue fell within the "miscarriage of justice" exception to appellate waivers carved out in United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).