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After months of dropping hints, the 3rd U.S. Circuit Court of Appeals made an explicit announcement Thursday of how it intends to handle dozens of pending criminal appeals in which defendants have challenged their sentences in light of the U.S. Supreme Court’s January decision that converted the sentencing guidelines from a mandatory scheme to a merely advisory one. The bottom line: All of the cases anywhere in the appellate pipeline at the time of the U.S. Supreme Court’s decision in United States v. Booker will be sent back to the district courts for resentencing. Thursday’s ruling came in a rare statement by all of the 3rd Circuit’s active judges rejecting a motion by the government that asked for the rehearing of a February decision that ordered resentencing for three defendants. Ordinarily, a decision by the full court to reject a petition for en banc rehearing comes with no comment. Occasionally, one or more judges will dissent from the decision and express their views as to why the full court should have taken the case up. Thursday’s decision in United States v. Davis was highly unusual because the court spoke unanimously in explaining why it would not reconsider its February decision, and, in doing so, announced its position on an entire category of post- Booker appeals. In the February decision in Davis, U.S. Circuit Judge Dolores K. Sloviter wrote: “In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the district court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.” With that single sentence near the end of a lengthy decision, Sloviter had hinted that there had been a conversation among all of the court’s judges on an issue that has split the circuits — whether resentencing is required for all defendants with direct appeals pending, even if they failed to raise Booker-style claims in the lower court. After Davis was handed down, prosecutors urged the 3rd Circuit to put a hold on all other pending appeals that raised Booker issues and to rehear the Davis case en banc. The government’s position was that not all such defendants are entitled to a resentencing, but instead must meet a “plain error” standard because they did not raise the issue at the time of sentencing. Under the plain error test, the government argued, each defendant has the burden of showing “prejudice,” meaning that his or her sentence would have been different. Now, in a nine-page opinion authored by Chief Judge Anthony J. Scirica, the court found that every such defendant is likely to satisfy the plain error test since the trial judge who imposed the sentence was treating the sentencing guidelines as mandatory. Because Booker changed the very nature of the sentencing guidelines, the court said, prejudice can be “presumed.” “A defendant’s substantial rights may have been affected where the district court erred by treating the guidelines as mandatory rather than advisory,” Scirica wrote. “At this stage, we cannot ascertain whether the district court would have imposed a greater or lesser sentence under an advisory framework,” Scirica wrote. Scirica found that since the “sentencing calculus” was governed by a guidelines framework that the lower courts “erroneously believed to be mandatory,” the outcome of each sentencing hearing was “necessarily affected.” Although the plain error test generally places the burden on the criminal defendant to demonstrate “specific prejudice” flowing from the district court’s error, Scirica found that “in this context — where mandatory sentencing was governed by an erroneous scheme — prejudice can be presumed.” Scirica quoted the 6th Circuit’s recent decision in United States v. Oliver that said, “We would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given [defendant] the same sentence post- Booker.” Agreeing with that sentiment, Scirica said that “failure to remand for resentencing, therefore, could adversely affect the fairness and integrity of the proceedings.” As a result, Scirica said, “defendants sentenced under the previously mandatory regime whose sentences are being challenged on direct appeal may be able to demonstrate plain error and prejudice. We will remand such cases for resentencing.” By remanding, Scirica said, “we ensure that each defendant to whom Booker applies is sentenced accordingly. This approach results in uniform treatment of post- Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources.” But in his final paragraphs, Scirica also explained that the court had decided not to send all of the cases back to the lower courts at once. “We will continue to review each appeal individually,” Scirica wrote, noting that defendants have been directed to state whether they wish to challenge their sentence under Booker. “For those who do not, we consider the appeal on its merits. Where an appellant raises a Booker claim and establishes plain error, however, we will decide claims of error related to the conviction, vacate the sentence, and remand for consideration of the appropriate sentence by the District Court in the first instance,” Scirica wrote.

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