First the Western District of Tennessee, in Ross, and now the Middle District of Tennessee United States Attorney Offices have declined to challenge an assertion of Booker error. See United States v. Jones, No. 03-6016 (there is also an analysis of Jones’ claims of selective prosecution). The case is curious both because it is not a plain error case–Apprendi claims were raised below–but also because the Government had available to it an argument (that appeared strong to me) that any Booker error was harmless because the district court acknowledged that it had discretion to downward depart under the Guidelines, and decided not to do so:
in supplemental briefing filed shortly after the issuance of Booker, both Jones and the government agree that this case should be remanded for resentencing. Accordingly, we vacate the sentence and remand for resentencing in light of Booker.
The opinion continues:
Prior to Booker, we could not disturb a district court’s denial of a downward departure for "exceptional circumstances" unless the district court was unaware it had discretion to make such a departure. United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002). Here, the district court clearly noted that it had such discretion, but refused to depart downward.
The opinion then continues, suggesting that even sentences properly calculated within the Guideline range might now be susceptible to appellate challenges:
Booker however, makes clear that the Sentencing Guidelines are now advisory, giving the sentencing judge substantially more discretion to sentence above and below the Guideline range.Booker, 125 S. Ct. at 767 (Breyer, J., for the Court). Furthermore, the district court’s sentence, and its exercise of discretion (if any), must be reviewed by an appellate court for "reasonableness." Id. at 766. (Breyer, J., for the Court). Accordingly, on remand, we encourage the sentencing judge to explicitly state his reasons for applying particular Guidelines, and sentencing within the recommended Guidelines range, or in the alternative, for choosing to sentence outside that range. Such a statement will facilitate appellate review as to whether the sentence was "reasonable." However, we take no position as to the content or extent of such a statement.
Booker fanatics might care to know that an unpublished Sixth Circuti opinion vacated and remanded a case for sentencing after the Supremes GVR’d it in light of Booker. See United States v. Loverson, No. 03-6120.