Readers should rest assured that we continue to monitor the Second Circuit each day for new criminal and habeas (and sometimes immigration) decisions. There have been no new posts on this Blog simply because the Court has not issued any published decisions in these areas in the last week and a half.
On the Booker / Crosby front, the only news to report is that the U.S. Attorney’s Offices for both the Southern and Eastern Districts of New York are complying with Crosby for cases pending on appeal and are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker. The only exception to this policy, apparently, are cases involving plea agreements with appellate waivers. The Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant.
Given that there is already a circuit split on the post-Booker plain error question (the 11th Circuit, e.g., has specifically rejected Crosby), and given the possibility that DOJ may seek rehearing on Crosby (or even file cert. if rehearing is denied), it seems wise for counsel to seek such remands as soon as possible. After all, once a district judge, at the “threshold” remand proceeding to determine “whether to re-sentence the defendant”, has announced that s/he would indeed have imposed a materially different sentence under the post-Booker regime, an appellate court would be hard pressed to say, even if Crosby is eventually undermined, that there was no plain error in that case. In short, get going while the going’s good: Get your Crosby remands as soon as possible.
Finally, just a reminder to all — please post comments whenever you wish via this Blog, and please e-mail us if you have any questions or comments.