If United States v. MacKinnon, No. 03-2219 (1st Cir. March 16, 2005) was not remanded for resentencing in light of Booker and the strict standard set up by the First Circuit in United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365 (1st Cir. Feb. 22, 2005), it is hard to imagine any case that would have been remanded with unpreserved Booker error. Following Antonakopoulos (panel opinion by Circuit Judge Sandra L. Lynch), as we discussed here, "defendants would not get a remand for resentencing except in extremely rare occasions when, for example, the District Judge expressed at the time of sentencing that he would have imposed a lesser sentence if it were not for the mandatory nature of the guidelines." Well, in MacKinnon, Hon. Rya W. Zobel, US District Judge - D.Mass. stated as follows at the time of sentencing:
I do not believe that the law allows me to depart in this case. . . . There are simply no bases under the law, as I understand it, that allow a departure. It is an obscene sentence that has to be imposed. It is unwarranted by the conduct, granted that Mr. MacKinnon has a hugely long record, but 188 months, which [is what] the sentence would have been without the [§] 851 notice, was more than adequate for this then forty five-year-old man to serve, he would have been sixty or so when he got out, but I have no choice.
The court further stated: "I have worked hard on the memorandum and tried to figure out some way under the law in which the sentence could be reduced. I can't do it. And although I totally disagree with our government's policies at this stage concerning sentencing, I am bound to obey my oath and to do this according to principle, knowing all the time that this is an unjust, excessive and obscene sentence." The court then concluded by stating "I have no power to grant you leniency. I'm without authority to do other than as the statute prescribes, having in mind the charging decisions that were made and the 851 notice."
With these statements, it is difficult to envision the First Circuit not remanding in this case. Curiously, Judge Lynch (who authored Antonakopoulos) was also on the panel in MacKinnon, which had already been argued when Booker was decided. MacKinnon's counsel was invited by the Court to submit supplemental briefs in which he argued "that he should be resentenced in light of Booker." Did Judge Lynch have MacKinnon's case in mind when she wrote the opinion in Antonakopoulos?