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July 12, 2005

A plain error irony in Sensenbrenner's letters

Thanks to the folks at NACDL, you can now find at this link the remarkable letters that House Judiciary Chairman James Sensenbrenner wrote to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera, No. 02-3238 (7th Cir. June 16, 2005), amended (June 28, 2005) (background here).  My first reaction to the letters, which are dense with legal cites and read like a petition for rehearing, is amazement that Sensenbrenner and his staff apparently concluded that a case involving a low-level drug dealer getting a sentence of 8+ years instead of at least 10 years is of such importance that it justified expending great time and energy writing these aggressive (and ethically suspect?) missives. 

But putting aside Sensenbrenner's questionable priorities, I was especially struck by a statutory argument developed in the letters which suggests that every circuit applying a tough Booker plain error standard is violating the Sentencing Reform Act (SRA).  Citing 18 USC 3742(f)(1) (available here), the Sensenbrenner letters contend that the SRA provides that a circuit court, whenever it finds that a sentence "was imposed in violation of law," has a statutory obligation to remand for the imposition of a lawful sentence "whether or not that question was presented to the court of appeals by either direct or cross appeal or whether or not it was raised by either party."  Sensenbrenner Letter to CJ Flaum at p. 2.  "Rather," continues the letter, "the statute mandates a remand upon a determination by the court that 'the sentence was imposed in violation of the law.'"  Id. (emphasis in original).

As detailed in these comments, there is actually an interesting debate whether the sentence in Rivera "was imposed in violation of law."  But not really subject to debate is the fact that every single pre-Booker sentence imposed pursuant to mandatory guidelines "was imposed in violation of law."  Ergo, if Sensenbrenner's reading of the SRA is correct, it would seem that the SRA calls for every single pre-Booker sentence to be remanded for the imposition of a lawful sentence "whether or not that question was presented to the court of appeals by either direct or cross appeal or whether or not it was raised by either party."  Or put another way, Sensenbrenner's letters suggest that circuit courts refusing to remand on plain error grounds are violating the appellate review provisions of the SRA.

UPDATE: In addition, I think Sensenbrenner's letters support my arguments, detailed here and here, that appeal waivers are against public policy as violative of the appellate review provisions of the SRA.  If the statute mandates resentencing to correct unlawful sentences regardless of the parties' wishes or arguments, why should prosecutors and defendants through appeal waivers be allowed to completely opt-out of appellate review through appeal waivers (and why should appellate courts honor and enforce these waivers)?

July 12, 2005 at 04:46 PM | Permalink

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