In U.S. v. White, No. 04-13442 (July 14, 2005), the Court (Carnes, Marcus, Fay) rejected a Booker-based challenge to a sentence imposed for revocation of supervised release.
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."
