Since Friday, we have had four Booker decisions from the Eleventh Circuit, including some defense victories, believe it or not. These are worth reading about if you're in the criminal-law world or are just fascinated by Booker. But because the post will be pretty long, I'm putting it below the fold:
(1) Most useful for many defendants will be today's US v Dacus. The case comes up for plain error review because Dacus didn't raise the Booker-Blakely-Apprendi issue below. Indeed, he didn't even raise it in his opening appellate brief, but the Government confessed error, so the panel is willing to do plain error review. Like everybody else, he can meet the first two prongs of plain error easily: error (through treatment of Guidelines as mandatory) and plain at that. The hard part, in the Eleventh Circuit, starts with the third step: proving a "reasonable probability" of a better result if the District Court had known the guidelines were advisory. Here, the Court holds that this prong of the test is met (as is the fourth prong) because the District Court stated that it would have "certainly consider[ed]" departing downward if it had the legal authority to do so. (See the quotation from the District Court on the last page of the slip opinion. The District Court also said some nice things about hoping that he'd get assigned to a good facility.) A correct decision, because it does not equate "reasonable probability" that he would have gotten a lesser sentence with "definite certainty."
(2) In light of #1 above, little needs be said about US v Martinez. Basically the same issue, except the District Court here was quite clear that it would have given a below-Guidelines sentence if it could (and now, thanks to Booker, it turns out that it can).
(3) The mundane part of US v Burge is its holding that there was no plain Booker error in treating the guidelines as mandatory, because Burge failed at the third step that we've just been discussing. The more interesting and legally controversial part is its holding that Burge's prior juvenile conviction could be used as a basis for enhancing his sentence on the grounds that the juvenile offense included use of a firearm, without running afoul of Booker. In reaching this conclusion, the Court makes two-subconclusions. First, the trial court was allowed to make a finding that he used a firearm in the juvenile offense by looking at the petition and judgment from juvenile court (which said that he did). In other words, the "prior conviction" exception to Booker-Blakely-Apprendi did not limit the trial court to looking only at the fact of conviction and the definition of the offense (i.e., burglary, which does not necessarily involve a firearm). Second, use of a prior juvenile conviction as an exception to Booker-Blakely-Apprendi is constitutionally OK, the Court says, even though there is no right to jury trial in juvenile proceedings.
(4) US v. Crawford is pretty important, in terms of its holding about how appellate review will work in a post-Booker Eleventh Circuit. Basically, they say that they will still review the calculation of the Guidelines range just as they did under pre-Booker law, and it is still incumbent on the sentencing court to correctly calculate and then "consult" the guidelines range before deciding what sentence to impose. (This was a pre-Booker case, but it sounds as though they will take this approach in post-Booker cases as well). Doing that sort of review, the Court reverses (as clearly erroneous) a finding that the offense involved only minimal planning, and reverses a downward departure because it was based in part on factors that are impermissible as a basis for a Guidelines departure. (Again, remember that this sentence was a Guidelines sentence, not a post-Booker sentence). The case is thus remanded for resentencing, with the resentencing to take place in the world of Booker.