Although Henningsen did not raise the issue of constitutionality in his brief, he made notice of the Blakely and Booker decisions in a subsequent filing and raised the issue during argument. In light of the uncertainty surrounding this issue and the questionable constitutionality of Henningsen’s sentencing enhancement, we do not find that Henningsen has waived his right to challenge the validity of the district court’s sentencing enhancement.
The Seventh Circuit is withholding the mandate in this case until after the opinions in Booker and Fanfan issue. But there is nothing that I am aware of to suggest that the opinion in either case is going deal with waiver. That would leave the Seventh Circuit's waiver approach untouched, at least for the time being.