6.12.2007

Fifth Circuit Notes Split Re Whether Booker Changed the Standard of Review for Revocation Sentences from "Plainly Unreasonable" to Reasonableness

Per U.S. v. Cantrell, Slip Copy, 2007 WL 1655271 (5th Cir. June 06, 2007):


Prior to United States v. Booker, 543 U.S. 220 (2005), we reviewed a sentence imposed after revocation of supervised release to determine whether it was “in violation of the law or plainly unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th Cir.1994). Subsequent to Booker, we have recognized that there is a circuit split regarding whether Booker changed the standard of review for revocation sentences from “plainly unreasonable” to reasonableness. United States v. Jones, --- F.3d ----, Nos. 06-30535 & 06-30563, 2007 WL 1098433, *7 (5th Cir. April 13, 2007). We further recognized that other courts of appeals found the two standards functionally equivalent. Id. Nonetheless, we did not reach the issue because the appellant had not preserved the objection and thus it was “subject only to plain error review on appeal.” Id. at *7. Here, because Cantrell is precluded from obtaining relief in any event, we will assume solely for the purposes of this appeal that we would ultimately choose to follow the circuits that have reviewed post- Booker revocation sentences for reasonableness.FN2


FN2. However, it should be noted that this Court has indicated-though not held-that “[t]he Fourth Circuit persuasively reasons that § 3742(a)(4), which authorizes the ‘plainly unreasonable’ standard for revocation sentences, was not invalidated by Booker.” Hernandez-Martinez, 2007 WL 1140327 at *3 (citing United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006)).

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