Two short Booker-related opinions today.
In the first, United States v. Fagans, the Court considered the procedure for reviewing cases with preserved Blakely errors. In such cases, Crosby's plain error analysis does not apply, and the court should simply vacate and remand for resentencing. However, if a party has raised a Guidelines calculation question, and "if the Guideline calculation issue is not difficult, it might often be preferable to adjudicate the calculation issue promptly so that subsequent sentencing proceedings will occur in light of a correct calculation." That is what the court did here, and it determined that the calculation was correct. It thus vacated and remanded for resentencing.
The second opinion, United States v. Morgan, was on reconsideration before decision. The question: whether a waiver of appeal rights in a plea agreement includes a waiver of Booker errors, where the appellant did not timely appeal from the initial plea. The answer: "we now hold that, for a defendant such as Morgan who seeks relief from his sentence but did not in a timely fashion seek relief from the underlying plea, an appeal waiver is enforceable and forecloses the right to appeal under Booker/Fanfan." An appellant's "inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. On the contrary, the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements." This brings the CA2 in line with the other circuits to have considered the issue, the CA6 and CA11.