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December 11, 2004

More prognosticating on Booker and Fanfan (and Roper)

Attorney Mark Stancil, who produces a newsletter on Supreme Court cases and whose insightful thoughts on the Booker and Fanfan oral argument were previously provided by Crime and Federalism here, has now shared his latest thoughts on the decisions for which we are all waiting.  Here is his intriguing thinking:

Shocking Booker/FanFan Prediction

Quite frankly, I'm surprised these monsters haven't come down already, particularly in light of Acting SG Clement's opening statement at oral argument that the federal system averages 1,200 sentencings per week. This is shaping up to be a nasty logjam, but I predict the end is in sight. Official word from the Court's opinion/weather hotline is that one or more decisions will be handed down on Monday (also, highs in the mid-40s, chance of showers). I figure the Apprendi/Blakely majority will serve up these stocking stuffers just in the nick of time.

For your amusement, I'll also take a stab and say Justice Thomas is writing the majority opinion on question 1 (whether Blakely applies to the Federal Sentencing Guidelines). Why?  Assuming the Blakely lineup holds, Justice Stevens would be the assigning Justice and methinks he'd be inclined to let his infrequent ally take a shot after giving Blakely to Scalia.  And Souter already has a majority assignment from the first week (KP Permanent Makeup), and surely that would have been on the back burner if he was also slogging through Booker/Fanfan. Ginsburg also has a first-week majority (Koons Buick).

But why wouldn't Stevens just keep it for himself?  Because I'd wager he'd expect to be knee deep in Roper v. Simmons (execution of juvenile offenders) on one side or the other, and would probably recognize the value of letting the always thorough Thomas plow through the minutiae of the Sentencing Reform Act and the Guidelines. Thomas' authorship is also likely to have started a war of words with Breyer, which would account for the extra weeks of back-and-forth (and, perhaps, the false rumor circulating around Washington a few weeks ago that the opinions were coming down). I make no predictions on the severability issue, except that there will be at least 4 separate opinions and bodies flying every which way.  All of this, of course, is just half-baked tea-leaf-reading by a guy hopped up on generic Day-Quil.

UPDATE: This post has prompted the (magical?) mystery blog, previously discussed here, to post another astute analysis (following up this earlier effort) concerning what might be going on inside chambers as Booker and Fanfan get hammered out.

December 11, 2004 at 02:07 PM | Permalink

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Comments

Prof Berman, hello again. As I read the link provided in the "update" of "another astute analysis" I have become confused. It says:
"What of Harris and its apparent approval of mandatory minimums sans jury?" What does that
mean?? Also it says that Harris is a
PLURALITY issue...what does that mean.
my email is [email protected] --tks-Davor

Posted by: Davor Rom | Dec 11, 2004 8:00:51 PM

Attention Sentencing Guru's on the best blog available! An inquiring mind wants to know: Do you think there is any hope for a pre-Aprrendi case that has previously filed a 2255 motion raising some of the currently 'hot" issues such as the application of the FSG. This case is out of the 7th circuit. My loved one was convicted by a jury of conspiracy to manufacture and posess with intent to distribute PCP. My relative did not have any prior convictions and received enhancements for obstruction. He really angered them I suspect. Also, at sentencing he was denied a two-level downward departure for substantail assistance. Is there any opinion in Booker/FanFan that might persuade the appealate court to grant permission for the District Court to hear a sucessive 2255. We have tried so many strategies for releif from this nightmare. All suggestions welcome. Has served 13 years so far in the BOP.

Posted by: Steph | Dec 12, 2004 12:29:46 AM

DR: The "ussc" blog -- which clearly labels itself a satire of those who claim inside knowledge of the Supreme Court -- is written by someone with a very sophisticated knowledge of Supreme Court precedent and styles of reasoning. The reference to "Harris" is to the Supreme Court's 2002 decision distinguishing mandatory minimums from increased maximums under Apprendi's constitutional principle. A "plurality" opinion is an opinion which commands the most votes in a given case in support of the winning result, but less than a majority. In Harris, Justice Breyer voted with the plurality to uphold the sentence but disagreed with their reasoning. A plurality opinion, by itself, cannot establish a new precedent.

Posted by: Peter G | Dec 12, 2004 9:01:13 PM

Steph: My sympathies for your loved one's situation, which unfortunately is shared by thousands of others. Under the Antiterrorism and Effective Death Penalty Act of 1996, which amended the law governing federal habeas corpus and section 2255 motions, a new rule of constitutional law cannot be the basis of a second or successive 2255 motion unless that rule is first held *by the Supreme Court itself* to be retroactive. A holding on retroactivity can only occur in a 2255 or habeas case, since new rules apply automatically to cases which are on direct appeal. So assuming that the "rule" announced in Blakely (or possibly even in Booker/Fanfan) is deemed to be a "new rule," it cannot be applied to your loved one's case -- at best -- until after someone else brings and wins a first, timely 2255 (or habeas corpus) case on Blakely (or Booker) grounds *in the Supreme Court*. That process will necessarily take at least a couple more years, as best I can figure it (as a criminal defense appellate lawyer who has done a lot of thinking about this). Of course, I'd like to hear if others disagree.

Posted by: Peter G | Dec 12, 2004 9:11:04 PM

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