In United States v. Booker, the Court declared that the sentencing judge's ability under the Federal Sentencing Guidelines to enhance a sentence based on facts found by the bench, and not the jury, ran afoul of the Sixth Amendment right to a jury trial. With this dramatic shift in the sentencing sphere, courts are being forced to deal with the question of what is to be done with the criminal defendants who were subject to unconstitutional judicial fact-finding prior to Booker. Courts have particularly struggled when face with defendants convicted prior to, but appealing after Booker. The Supreme Court has commanded that such defendants must show "plain error" on the part of sentencing judges in order to get a new sentencing hearing. While this seems like a fairly bright line, the Court of Appeals has split on what the meaning of "plain error" is in the context of Booker error.
This paper examines this split among the circuits and argue that while some circuit have reached the correct results, all court have failed to detect that Booker error is constitutional structural error that entitles all defendants to new sentencing hearings.
John Jay Stein,
When the Meaning of Plain Error Isn't So Plain: Deciphering Plain Error in the Context of Booker,
33 Hastings Bus L.J. 447
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol33/iss4/3