Split, Uncertainty on Some Booker Issues Noted by 11th Circuit

The Eleventh Circuit in U.S. v. Vernier, Slip Copy, 2005 WL 2496118 (11th Cir. Oct 11, 2005)noted some uncertainty and a circuit split with respect to a couple of issues related to United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005) :

Whether exercise of a court's discretion to depart upward is a decision made under a "mandatory Guidelines regime," as needed for Booker error, is a matter of some uncertainty. Compare United States v. May, 413 F.3d 841, 848 (8th Cir.2005) (stating that it is "unclear" whether a departure within the district court's discretion is Booker error), with United States v. Cunningham, 405 F.3d 497, 504 (7th Cir. 2005) ("To the extent that [defendant] argues that the court's upward departure [not mandated by the guidelines] violates the Sixth amendment, he is correct."). This Circuit has yet to squarely address whether discretionary departures may even constitute Booker error. This case will not be our first foray into that debate. Even if the Defendant could establish that the district court's upward departure somehow amounted to Booker error, and that the error was plain, in satisfaction of the first two prongs of the plain error standard, Vernier would fail still again because he cannot show that the error affected his substantial rights.

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Finally, we consider the district court's order to pay restitution under § 3663A of the MVRA. Recently, we observed that neither this Court nor the Supreme Court has addressed whether Booker applies to restitution orders and other circuits are split on the question. United States v. King, 414 F.3d 1329, 1330 (11th Cir. 2005). Thus, even if a court's restitution order constituted Booker error, that error was not "plain." Id. Defendant's argument cannot succeed for this reason.