At some point, the endless discussion of Booker issues may bore Flash readers, but the Ninth Circuits decision last week in Ameline definitely merits notice. As folks may remember, Ameline was a pre-Booker opinion form Judge Paez that took the best read on all the Blakely issues: the federal guidelines were unconstitutional to the extent that they allowed enhancements of sentences on factual findings not made by juries; such sentences were plain error, and thus could be raised on appeal even absent a trial court objection; and the remedy was either a sentence reduced to the base term or a new trial on sentencing factors.      The remedy part of Ameline has been rendered a dead letter by the infamous Ginsburg switch from the majority that held the guidelines sentences unconstitutional to the Breyer majority on remedy: i.e., the guidelines are now advisory, and federal judges can resentence in their discretion without requiring a reduction to the base term or new trials on sentencing factors. Judge Paez did, however, pump out a new Ameline opinion last Wednesday preserving a vital part of his earlier ruling.  Unconstitutional sentences under Blakely and Booker remain plain error, and thus can be raised on appeal absent objection below.  You can bet that there will be a circuit split on this issue, so jump on it while you still can.      On a retroactivity point, the Breyer majority obviously wanted to limit the reach of Booker to the greatest extent possible, and thus stated it applied, as Ameline notes, "to all criminal cases pending on direct appeal at the time it was rendered...." It will be difficult, if not impossible, to get review of sentences as to which the appellate mandate issues before Booker was decided on January 12, 2005, although we can argue that relief should be available for all cases still on appeal when Blakely, Bookers progenitor, was decided.  But I now have a case presenting the issue of whether Booker applies to a case in which certiorari was denied by the Supreme court in November of 2004, but the judgement did not issue from the Ninth Circuit until a week after Booker.  The government is arguing that an appeal is final when certiorari is denied. Should anyone also have that arcane issue, check out the Ninth Circuits recent decision in Beardslee v. Brown, 393 F.3d 899, 901 ("An appellate courts decision is not final until its mandate issues.").      Thanks to Dennis Riordan for this analysis