U.S. v. Akpan sets out what is needed in the record to preserve Booker error; I’m slightly surprised how little is needed. At sentencing, defendant Okoro
repeatedly objected to the district court’s determination of a range of financial loss between five and ten million dollars on the ground that that figure had not been proven at trial. Okoro also consistently urged that the district court confine its determination of loss to the amount alleged in the indictment. Although Okoro never explicitly mentioned the Sixth Amendment, Apprendi, or Blakely until his Rule 28(j) letter, we are satisfied that his objections adequately apprised the district court that Okoro was raising a Sixth Amendment objection to the loss calculation...
The court then noted a split in the circuits as to whether harmless error analysis applied to Booker error but, because the error here was harmful, it reversed without coming down on either side on whether harmless error analysis would be appropriate.
One other issue is worth remarking upon. The government had summary notebooks of excerpts from key exhibits that the court allowed to be passed out to the jurors before opening arguments. The exhibits in the notebooks had already been admitted into evidence. The trial broke for the day after jury selection, and a juror asked if they could take the notebooks home. The Fifth Circuit held that this was harmless error if error at all, but in doing so made clear that it took a dim view of allowing jurors to take home trial materials.