Two unpublished Booker opinions from the Sixth Circuit today. United States v. Story, No. 03-6260, and United States v. Ryan, No. 04-5401. In Ryan, Judge Merritt emphasizes that Oliver is not only first, it was right:
Subsequent cases have followed the principles of the Oliver case rather than shifting the burden of proof to the defendant, as in the Bruce case. See United States v. McDaniel,Nos. 03- 1940, 03-2073, 2005 WL 366899 (6th Cir. Feb. 17, 2005); United States v. Milan, Nos. 02-6245, 02-6302, 2005 WL 309934 (6th Cir. Feb. 10, 2005);United States v. Barnett, No. 04-5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005). Moreover, § 3742(f)(1), Title 18, states: "If the Court of Appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of an incorrect application of the Sentencing Guidelines, the Court shall remand the case for further sentencing proceedings with such instructions as the Court considers appropriate" (emphasis added).
For those who like to read the sub-plots of this saga, I also note that the USAO for the Eastern District of Tennessee, setting itself apart from the Middle and Western Districts, has been granted abeyances in their appeals with Booker issues pending the issuance of the mandate in Oliver. The Government has until March 18 to file a petition for rehearing en banc in Oliver.