In Williams the Circuit, with Judge Newman writing, has added further comment on its plain error approach in Booker/Fanfan cases, as set out in United States v. Crosby, noted here. The Court reiterated the two types of errors in Booker and Fanfan -- mandatorily enhancing a sentence based on facts not found by the jury and, as in Fanfan, "mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury." And it once again held that the proper response to such errors was to remand to the district court, not for resentencing, but to determine whether a materially different sentence would initially have been imposed under Booker and Fanfan, and if so, to conduct a resentencing.
The major portion of the opinion consists of the Court's response to different plain error approaches taken in other circuits and an explanation of why it adheres to the limited remand adopted in Crosby. Initially, however, the Court makes an interesting historical argument noting the origins of the plain error rule in two concerns, protecting the legal rights of the parties below on the one hand, and avoiding the costs of multiple jury trials on the other. The balance between these two concerns, the Court noted, was different in the sentencing context for two reasons. First, after a jury trial, the "first jury is no longer available to advise as to what it would have done in the absence of error," but in the sentencing context, the district judge is available and well-equipped to answer the question whether its error was prejudicial. And second, a resentencing, unlike a new trial, is a "brief event," with relatively small attendant costs.
In canvassing the approaches of other circuits, the Court disagreed with the Eleventh Circuit that the "consequence of uncertainty" about the existence of prejudice "must be that the defendant necessarily loses." Its disagreement was rooted in the distinction between the application of plain error at sentencing and at trial; the Court could "see no reason to risk leaving in place a sentence that might be materially lower or higher than the one that would have been imposed without error." On the other hand, the Court departed from the views of other circuits that a full resentencing would usually be required if error were found, because of additional risks and burdens that approach created. The disposition set out in Crosby, it concluded "avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing."
