In U.S. v. Duncan, No. 03-15315 (Feb. 24, 2005), the Court (Anderson, Birch & Land b.d.), vacating its prior published opinion, held that the defendant could not satisfy the "substantial rights" third prong of "plain error" because he could not show that he would have received a lesser sentence but for the Booker error of sentencing him under a mandatory regime. The court also rejected the defendant’s "creative" ex post facto argument.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.