In its first decision since the U.S. Supreme Court’s decision in U.S. v. Booker that overruled the mandatory nature of the federal sentencing guidelines, the Fifth Circuit Court of Appeals on this past Friday explained how Booker issues are to be handled within the Fifth Circuit in its opinion in United States v. Mares. Interestingly, the opinion notes that it was circulated among the judges of the circuit and changed to reflect their comments. Here are the prior posts over the past year on the Booker decision and the developing case law regarding the federal sentencing guidelines.
The Booker analysis in the opinion has two basic parts. First, the Fifth Circuit explains how the sentencing guidelines are to be applied post-Booker. Second, the Court establishes the plain error analysis that it will use in analyzing future Booker issues.
The following is how the Fifth Circuit described the Booker issue in Mares:

Mares? sentence was enhanced based on findings made by the judge that went beyond the facts admitted by the defendant or found by the jury. The jury found that Mares, a felon, possessed ammunition. The judge enhanced the sentence based on his finding that Mares was involved in a felony when he committed the offense.

In regard to the sentencing guidelines under Booker, the Fifth Circuit states as follows:

Even in the discretionary sentencing system established by Booker/Fanfan, a sentencing court must still carefully consider the detailed statutory scheme created by the SRA and the Guidelines, which are designed to guide the judge toward a fair sentence while avoiding serious sentence disparity. Although Booker excised the mandatory duty to apply the Guidelines, the sentencing court remains under a duty pursuant to ß 3553(a) to ?consider? numerous factors. . .
If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines. Given the deference due the sentencing judge?s discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say such a sentence is ?unreasonable.?
When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so, little explanation is required. However, when the judge elects to give a non-Guideline sentence, she should carefully articulate the reasons she concludes that the sentence she has selected is appropriate for that defendant. These reasons should be fact specific and include, for example, aggravating or mitigating circumstances. . .

Then, in regard to the particular facts of the Mares case, the Fifth Circuit employed its plain error analysis for Booker issues in rejecting Mares? claim of plain error:

An appellate court may not correct an error the defendant failed to raise in the district court unless there is ?(1) error, (2)that is plain, and (3) that affects substantial rights.? Cotton, 535 U.S. at 631. ?If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.? Id.

The third factor is the most important in that it requires the defendant to show that the trial court’s error affected the outcome and that it undermined confidence in the outcome. On this particular point, the Fifth Circuit enunciated a difficult burden for the defendant to fulfill:

Since the error was using extra verdict enhancements to reach a sentence under Guidelines that bind the judge, the pertinent question is whether Mares demonstrated that the sentencing judge – sentencing under an advisory scheme rather than a mandatory one – would have reached a significantly different result.
Based on the record before us, we reach the same conclusion … We do not know what the trial judge would have done had the Guidelines been advisory. Except for the fact that the sentencing judge imposed the statutory maximum sentence of 120 months(when bottom of the Guideline range was 110 months), there is no indication in the record from the sentencing judge?s remarks or otherwise that gives us any clue as to whether she would have reached a different conclusion. Under these circumstances the defendant cannot carry his burden . . .

Finally, the Court noted the split that is developing among the circuit courts in handling post-Booker decisions, with the Fourth and Ninth Circuits taking a different approach in remanding post-Booker cases than the First, Fifth and Eleventh Circuits are taking.
Although certainly not a slam dunk, my sense is that the Mares decision is a reasonably favorable one for both Jamie Olis — who is serving an unjust 24 year sentence — and the Nigerian Barge defendants, who would be facing mandatory sentences of similar length but for the Booker decision. U.S. District Judge Sim Lake made comments during Mr. Olis’ sentencing that clearly indicated that he was troubled by the length of the sentence that the then mandatory sentencing guidelines required him to impose. Similarly, U.S. District Judge Ewing Werlein is a man of fairness and depth who will not hesitate — if he concludes that the circustances of the Nigerian Barge case so warrants — to make the findings necessary to impose lesser sentences on the Nigerian Barge defendants than those recommended under the sentencing guidelines.