One case today, and lo and behold, the defendant succeeds in demonstrating plain Booker error even under the Eleventh Circuit's standard, which is (under cases such as yesterday's Duncan) stricter than many other circuits'. (See Prof. Berman's chart of the various circuits here.) But in the course of reaching this result, the panel throws out some dicta that -- if they were actual holdings -- would make the Circuit's standard even stricter. More inside:
The case is U.S. v. Shelton. The analysis begins with the holding that there was no Sixth Amendment violation here (because, for instance, Shelton admitted the drug quantity), but that this doesn't really matter since there was err0r -- and it was plain -- in treating the guidelines as mandatory. So far so good.
The panel then holds that Shelton did satisfy his burden under the third and fourth steps of plain error doctrine, which (under Circuit precedent in Duncan and Rodriguez) consists primarily of showing a reasonable probability of a different result if the district judge had been applying the guidelines on an advisory rather than mandatory basis. Seems like the right decision here, since the district judge went on and on about how the guidelines sentence was too severe, and sentenced at the bottom of the range. Again, so far so good.
What's not so good, I think, is the dicta (1) to the effect that a defendant's burden at this stage is a "heavy" one (a peculiar adjective to describe the burden of merely showing a "reasonable likelihood" or "reasonable probability," I think), (2) and in describing the third-stage burden in a footnote as the burden of proving "that his sentence actually would have been different and shorter" under an advisory-guidelines regime, and (3) in saying that it is "important" that the defendant demonstrated to the Circuit's satisfaction that a lower-than-guidelines sentence would be reasonable in this case. Let us hope that other Judges of the Circuit -- including perhaps Judge Edmondson, who is often expert at distinguishing between holding and dictum -- recognize all this as dictum, since this panel (upon finding the evidence sufficient in this case to meet Shelton's plain error burden) had no occasion to be opining as to what sorts or level of proof would not suffice in other cases.