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February 5, 2005

Booker burdens in the 2d Circuit and elsewhere

As the Second Circuit Blog discusses here, the Second Circuit late yesterday issued a "Special Order of Inquiry to Appellants Regarding Remand Pursuant to US v. Crosby."  Crosby was the Second Circuit's major ruling last week, discussed here and here, which outlines the court's general understanding of sentencing and re-sentencing after Booker.  (Relatedly, the Second Circuit Blog here details the importance of the Second Circuit's Fleming case decided along with Crosby.)

This Special Order from the Second Circuit, which can be accessed here, explains that Crosby sets forth the post-Booker "remand for reconsideration" procedures to be applied to all cases held since Blakely came down in June, and then asks attorneys in these cases to complete a form indicating whether a defendant seeks a remand for sentence reconsideration.  [UPDATE: An insightful reader clarifies that the list is just those cases that had been decided and held by the Second Circuit since Blakely.]

Though not substantively a new development, it is fascinating to see the list of more than 200 cases in the Order's Appendix. Considering that, according to these USSC stats, the Second Circuit had only 177 appeals in FY 2002, it appears (not surprisingly) that Blakely significantly increased the number of appeals and thus increased the caseload in the appellate pipeline. 

The extra workload created by Blakely and Booker will surely be burdensome for courts in the Second Circuit.  But consider the extra work which must now be facing the Sixth, Eighth and Eleventh Circuits, each of which had roughly three times more appeals than the Second Circuit in FY 2002, or the extra work for the Fourth, Fifth and Ninth Circuits, each of which had roughly six times more appeals than the Second Circuit in FY 2002.

February 5, 2005 at 04:19 PM | Permalink


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To be precise, the order applies only to cases already decided by the Second Circuit, the mandates of which have been held pending Booker and Fanfan. Those cases specifically covered by the order are identified in its appendix.

One of the court's staff counsel told me (prior to this order being issued) that those who seek a Crosby-based remand in pending cases (i.e., those not covered by this order) should file a motion, accompanied by a stipulation if the government consents.

Posted by: Alex E. | Feb 5, 2005 4:43:51 PM

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