holding that the reimposed sentence “will stand, provided it is reasonable,” and citing to Booker, 543 U.S. at 268, 125 S.Ct. 738, for the proposition that “both the Sixth Amendment ruling and the remedial interpretation of the Reform Act, including the reasonableness standard, apply to all cases pending on direct review”
How later courts described this case
- holding that the reimposed sentence “will stand, provided it is reasonable,” and citing to Booker, 543 U.S. at 268, 125 S.Ct. 738, for the proposition that “both the Sixth Amendment ruling and the remedial interpretation of the Reform Act, including the reasonableness standard, apply to all cases pending on direct review”
- holding that the reimposed sentence “will stand, provided it is reasonable,” and citing to Booker, 543 U.S. at 268 , for the proposition that “both the Sixth Amendment ruling and the remedial interpre- tation of the Reform Act, including the reasonableness stan- dard, apply to all cases pending on direct review”
- holding that if, on remand, a district court determines a sentence imposed pursuant to the guidelines would have been the same if it had known the guidelines were advisory, “the original sentence will stand[ ] subject to appellate review for reasonableness”
- holding that “defendants are entitled to limited remands in all pending direct criminal appeals involving unpre served Booker error, whether constitutional or nonconstitutional”
Written by the judges who cited it.
The opinion
O’SCANNLAIN, Circuit Judge,
with whom Judge Bea joins, concurring in part and dissenting in part:
With hundreds of Roofcer-implicated cases awaiting disposition, we have chosen one of the worst possible vehicles in our inventory — one that presents a clear sentencing error unrelated to the constitutional issue for which we took it en banc to decide. I am fascinated that while we unanimously agree that Ameline’s sentence must be vacated and remanded to the district court for resentencing because of the Howard error, the district court judge in this case is free to resentence on a clean slate and to apply Booker as he sees fit.
However, since the Court now promulgates the Second Circuit’s “limited remand” without vacatur approach as our standard for all other pending Booker-related appeals, I would, instead, follow the jurisprudence of the Fifth and Eleventh Circuits as described in, respectively, United States v. Mares, 402 F.3d 511 (5th Cir.2005), and United States v. Rodriguez, 398 F.3d 1291 (11th Cir.2005), and simply apply plain error review with our usual vigor — to use the majority’s language— “the way plain error review normally works.” Maj. op. at 1080.
Forced to make the best of our predicament, I concur in Parts I, II and V of Judge Rawlinson’s majority opinion and its result; I join Part I of Judge Wardlaw’s lead dissent; and I join Judge Gould’s dissent, with the exception of his analysis of the third prong of plain error review.