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February 24, 2005

A fascinating 3d Circuit rumor

As detailed in posts here and here and here and here, the Third Circuit has apparently decided to handle Booker pipeline cases simply through remands for resentencing that explain that the Court believes Booker issues are "best determined by the District Court in the first instance."  I have now heard a rumor that the Third Circuit's general practice of remanding all sentences after Booker was developed after the Circuit judges polled the district judges on what to do, and the district judges virtually unanimously requested that they get all of their pipeline sentences back for redetermination.  If this rumor is true, it provides a fascinating example of what might be called inter-court comity, as well as another instance of how the Blakely/Booker fall-out has produced some unusual circuit court decision-making procedures (the Second Circuit's quasi en banc work in Crosby, as noted here, provides another such example).

February 24, 2005 at 07:59 AM | Permalink


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The process developing in the Second and now (perhaps) Third Circuit of remitting the question of plain error (which is in most cases the question of prejudice) to the district court is not only pragmatic but also is analogous to a recent procedure adopted by the Supreme Court itself. In Massaro v. United States, the Court decided that it was best to allow ineffective assistance claims to be raised in the first instance in the district court, rather than deeming them defaulted if they were not first raised in the Court of Appeals. One significant rationale for this was that the district court was in the best position to resolve the prejudice aspect of the ineffectiveness claim. There is no reason not to follow a similar procedure in Booker cases. It sure beats requiring every Court of Appeals to analyze the prejudice question in every pending Booker case and then requiring the district court essentially to re-analyze the question at a resentencing.

In fact, I wonder why prosecutors want to go back to the district court only in cases in which the Court of Appeals has suggested that there is a good basis for a lower sentence. In such cases, the Court of Appeals' analysis might persuade a district judge to grant a lower sentence when she would otherwise have been inclined to adhere to her earlier sentence and find no prejudice.

On the other hand, does it not seem unjust for the Court of Appeals to find no prejudice in cases where, as a matter of ascertainable fact, the sentencing court applying Booker would have granted a lower sentence?

Posted by: David in NY | Feb 24, 2005 9:54:55 AM

I have a concern about the rumor that the Third Circuit judges developed their strategy of handling Booker claims after polling the District Court judges, who all seemed to want to be the ones to reconsider the sentences they've handed down. Seems, to me, to be akin to "price fixing," which is something the courts would have a field day punishing! As a lay person, I find it incredulous that our judicial system is seemingly immune to all of the laws that are supposed to protect us. Isn't there something ethically wrong with the Circuit Court asking the District Courts, "Hey, guys! How do you want us to handle this thing for you? Want us to just hand it back to you, so you can look it over, then claim it's reasonable, so we'll just affirm?" How can this be justice?

Posted by: Cathy | Feb 24, 2005 3:38:02 PM

Cathy -- if the District Courts want the cases back, it's probably because they're inclined to change the sentences (lower them, in most cases, I'm sure). If they wanted the sentences to stand, they could just have encouraged the Third Circuit to affirm the cases on plain-error grounds.

Posted by: Chris | Feb 28, 2005 1:17:26 PM

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