United States v. Booker created a sea change in the law by rendering the federal sentencing guidelines advisory rather than mandatory. Although it is clear that federal appellate courts are to use the plain error standard when Booker error is raised for the first time on direct appeal, the Supreme Court of the United States offers no guidance in Booker for the proper interpretation of the third plain error prong, when the error prejudices a defendant's substantial rights. This omission has created an intercircuit split over the correct application of the substantial rights prong of plain error review in cases involving Booker error. This Comment argues that the Court should resolve this circuit split by adopting the reasoning of the Sixth Circuit in United States v. Barnett and United States v. Oliver. A presumption of prejudice is appropriate for review of both constitutional and non-constitutional Booker error not only because of the impossibility of proving adverse effect, but also because any other approach will undermine the credibility of the criminal justice system.
Deborah S. Nall,
United States v. Booker: The Presumption of Prejudice in Plain Error Review,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss2/12