In US v. Saikaly, -- F.3d --, 2005 Fed.App. 0402P, (6th Cir. Sept. 28, 2005) (No. 01-4001)(opinion available here), the Sixth Circuit issued an order rejecting the defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in 2004. The panel noted that the 1st, 2d, 7th, and 10th Circuits all have ruled similarly.
The panel's order, however, wholly ignores the Ninth Circuit's recent ruling in United States v. Crawford, -- F.3d --, 2005 WL 2030497 (9th Cir. Aug. 24, 2005), ( opinion available here ) which appears to allow the use of these motions to recall the mandate as a means to have Booker applied to cases that were final before January 2005. The Ninth Circuit's Crawford decision indicated that some defendants may obtain a form of what Prof. Berman calls "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing. Prof. Berman's always thoughtful and insightful analysis of this issue is available here and here.