In my previous post on United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) -- yes, the case where it appeared that the First Circuit might be endorsing a district court's consideration of disparities in sentences for the same conduct as between federal and state cases -- I mentioned that the docket revealed that the petition for panel rehearing filed by the government to have the Court express itself on this issue had been denied.
However, my look at the docket was on the cheap, only looking at the last entry so as to avoid paying for the full docket, and this caused me to overlook the errata entered by the Court, described in a previous docket entry. The key part of the errata was that the Court added a footnote that stated that "*We express no opinion at this time about whether federal state sentencing disparities may be considered under the post-Booker advisory guidelines." You can access the Wilkerson errata here.
This is pretty much in keeping with my initial view that the Court would find the Government's posture that such comparisons could never be considered post-Booker a bit of a stretch, and one the Court did not need to decide in a vacuum.