Harmless Error in a Booker Case

United States v. James T. Schlifer, Case No. 04-3398 (04/07/2005): Mr. Schlifer, anticipating Booker, objected to use of the sentencing guidelines as mandatory. The question on appeal, therefore, was harmless error, not plain error. The Court held that the government had not sustained its burden of persuasion on the question of harmless error. The government argued: (1) the district judge departed downward a mere three levels in return for Schlifer’s co-operation; (2) the judge refused a downward departure under section 5K2.0; and (3) the judge had referred to Schlifer’s prior criminal record as "horrendous." Yet all three responses by the district judge came in the context of a mandatory system, in which the judge’s discretion was more closely cabined. None says much about what the judge would have done had she known that the guidelines were merely advisory. The case was remanded for resentencing.

It is of some interest that the opinion was circulated to the entire Court before issuance. Since the opinion is presented as a fairly straightforward application of familiar principles, one wonders why it was circulated to the entire Court.

(Note that the opinion also reasserts prior Circuit law that there is no right to jury trial on the question of whether prior convictions are "related" for purposes of the career offender guideline. Although the opinion cites the recent Supreme Court decision in Shepard v. United States, it makes no effort to explain why Shepard works no change in the law on this issue.)