U.S. v. Pennell is an appeal from a money laundering conviction. After rejecting issues like insufficiency of the evidence, the court turned to Booker and (surprise) reversed on plain error review. In doing so, the court left open a possible trap for those rare cases where defendants survive plain error review.
The court noted that, at sentencing, defense counsel had objected to computation of loss based on intended rather than actual loss (and that this objection did not preserve Booker), and that the district court had stated in ruling:
All right. I think I have to overrule your objection. Once again, I say that from many standpoints of fairness and justice, it might be better to sentence people just based on actual loss, but I don’t think that’s the way the guidelines are written or the appellate courts interpreted them in most cases. So I feel constrained to overrule your objection.
The Fifth Circuit ruled:
Based on this statement, we are persuaded that it is likely that if the district court had thought that he was at liberty to select a loss figure other than intended loss he would have done so and would have arrived at a lesser sentence.
But, after remanding for resentencing consistent with Booker, the court stated:
We leave open the question of whether a panel can, under these or similar circumstances, vacate a sentence and instead of requiring resentencing, permit the district court to determine whether it would have imposed the same sentence had it known the Guidelines were advisory and based on this decision, determine whether it wishes to reinstate the same sentence or resentence the defendant.