We got an unsurprising glimpse of how some votes might fall in the anticipated Sixth Circuit en banc rehearing of United States v. Oliver, No. 03-2126 (the Government has filed a motion to enlarge the period for requesting en banc review in this case) and United States v. Bruce, No. 03-3110, the Sixth Circuit's conflicting cases regarding plain error review in light of Booker.
Today a panel consisting of Judges Cole and Clay, with Judge Hood sitting by designation, vacated a sentence imposed pre-Blakely as violating the Sixth Amendment. See United States v. Hines, Nos. 03-6622/6624. The appellant had been sentenced to 235 months' imprisonment for conspiracy to distribute meth and possession of a firearm in relation to the offense. The district court apparently sentenced to the bottom of a 235-293 sentencing window (I’m just guessing from the facts described in the opinion). The panel’s decision not to consider overwhelming evidence rings with deafening silence in light of the observation:
Consistent testimony from co-conspirators established that Hines was an active and major drug supplier, regularly moving several pounds of methamphetamine a month to regional drug dealers over the course of several years. Given this testimony, the district court’s finding that 32 pounds of methamphetamine was attributable to Hines is, if anything, a conservative estimate. As to the firearms enhancement, Hines himself admits to possessing firearms during the period of his drug-trafficking activity.
According to this panel, resentencing is in order, because:
[w]here the jury memorializes a specific factual finding, such as the amount of drugs possessed by Hines, we will adhere to that finding. And where the jury made no finding, such as with Hines’s possession of a firearm, it is improper to speculate.
The panel does not mention Oliver or Bruce, and sees itself as following the Fourth Circuit case of Hughes:
an appellate court’s presumption that re-sentencing would result in the same, or a substantially similar sentence, "would be tantamount to performing the sentencing function ourselves." Hughes, No. 03-4172 , — F.3d —, slip op. at 14 n.8. As appellate courts should review – and not determine – the decisions of the district court, we must vacate and remand for re-sentencing.
It seems Judges Cole and Clay might be voting with Judges Moore and Gibbons of the Oliver decision against Nelson and Cook of the Bruce decision. You can read our take on Bruce and Oliver here.
I have to wonder if the the Hines panel read the last paragraph of Booker:
Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain-error" test.
Their reasoning would seem to imply that all direct appeals that have a sentencing enhancement not found by a jury should be reheard.