Doug Berman at Sentencing Law & Policy mentioned the denial of rehearing en banc in U.S. v. Levy, a Fifth Circuit decision here and here. The opinion / order on the court's website is here. A number of people have reported trouble opening the file; and I have found access to the 11th Circuit's server intermittent. So I have put the opinion up here temporarily. I suggest downloading and opening it in Acrobat instead of relying on the browser plug-in to open it.
Both the majority and dissenting opinions are extremely interesting and maybe even important. The majority opinion's discussion of Griffith v. Kentucky looks plausible on its face, but for reasons I will explain in a later post, at the moment I think it is practically nonsense. Essentially, it assumes the Blakely issue it finds defaulted is subject to default. This is one of the things that makes the issue of waiver such a briar patch, as Judge Posner called it in LaGiglio. For example, if Blakely error produces a Boykin problem, is that problem waivable?
And while the 11th Circuit's attempt to limit Griffith to the cases facts, which involve objections preserved even in the face of controlling contrary precedent, I'm not certain that Griffith can be so limited if, for example, one reads the Court's application of Griffith in Powell v. Nevada, 511 U.S 79 (1994), which applies the 48-hour rule for probable cause determinations after a warrantless arrest made in County of Riverside v. McGlaughlin, 500 U.S. 44 (1991). There is also what the Court said in Johnson v. Texas, 509 U.S. 350 (1993), that makes the Levy majority's analysis suspect:
But the finality concerns of Teague come into play only after this Court has denied certiorari or the time for filing a petition for certiorari from the judgment affirming the conviction has expired. See Griffith v. Kentucky, 479 U.S. 314, 321 , n. 6 (1987). Until that time, the interests of finality and comity that caused us to implement the Teague standards of retroactivity are not at issue. The only demands with which we need, indeed, must, concern ourselves are those of the Constitution. On direct review, it is our constitutionally imposed duty to resolve "all cases before us . . . in light of our best understanding of governing constitutional principles," Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in judgment), without regard to reliance interests of the State.