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A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit

By Douglas A. Berman

In addition to the Sixth Circuit's affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here).  A helpful reader sent me these astute observations about the Duncan opinion: The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity..., but ultimately held that it was constrained by circuit precedent.continue to full post

Full post as published by Sentencing Law and Policy on January 10, 2009 (boomark / email).