Yesterday, April 29th, the Court issued the following blanket order, which applies to all appeals raising a Booker claim in which the error was not preserved (i.e., primarily cases in which the sentencing occurred before Blakely was decided in June 2004). It states, in is cryptic entirety,
“John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced the following: In cases pending on direct review involving appeals of sentences imposed prior to United States v. Booker, 125 S. Ct. 738 (2005), in which the sentencing judge’s error in applying the Sentencing Guidelines mandatorily was not preserved for appellate review by an appropriate objection, the Court will be receptive to motions agreed to by all parties to the appeal to remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), without the need for briefing of the merits of the appeal. However, any panel to which such motions are presented has the prerogative to dispose of such motions as the panel deems appropriate.”
I confess that I am not sure what this 2-sentence order means. On the one hand, the first sentence merely states the obvious: Haven’t we all been seeking Crosby remands on consent rather than filing full merits briefs? On the other hand, the second sentence seems to take away somewhat what the first sentence gives: Any individual Panel hearing such consent motions may grant, deny, or do anything else it deems approrpiate to such motions. Huh?
Suggested interpretations are welcome.