January 22, 2005
More Booker (and Blakely) news and commentaries
The newspapers and news magazines continue to cover and comment on various aspects of the Booker decision. Here's a run down of just some of the pieces that have caught my attention today:
- Continuing the editorial page praise of Booker (noted here and here and here), the Toledo Blade here has a strong piece on the Supreme Court's "Double, But Clear, Vision."
- Providing local assessments of Booker, with interesting quotes from judges and litigants, are newspaper articles from Arkansas and Iowa.
- Contributing deeper reflections on Booker and its place in the broader story of sentencing reform are a terrific set of pieces in Newsweek, Time, the New Republic and at law.com.
- And in Blakely news, here is an article from Washington state detailing that local officials are still struggling with the meaning and impact of Booker's predecessor.
January 21, 2005
Always remember to show your work
This afternoon, a memorandum, signed by Ricardo H. Hinojosa, Chair of the US Sentencing Commission, and Sim Lake, Chair of Criminal Law Committee of the Judicial Conference, was sent to all District Judges and other key court personnel concerning "Documentation Required to be Sent to the Sentencing Commission." The two-page memo, which can be downloaded here, "reiterates and emphasizes the importance of continuing to submit sentencing documents to the Sentencing Commission in accordance with the requirements of 28 USC § 994(w)." Here's the memo: Download ussc_documentation_request.pdf
The USSC memo sends a strong and critical message about documenting post-Booker sentencing decisions. It stresses that it is "particularly important that judges continue to comply with the requirements of 28 U.S.C. § 3553(c) by providing a complete statement of reasons for imposing the sentence" and notes that "documentation will be useful to the Judiciary, the Commission, and the Congress as we strive to continue to carry out the goals" of sentencing reform.
In a related vein, the blog Ex Post is doing a stunning job live-blogging the work at the on-going Columbia Law School conference on state sentencing. Already posted are wonderful accounts of Friday's two panels (here and here) and two lectures (here and here), and I also see two potent pre-conference about Booker (here and here). And, the Blakely Blog now also has extended posts covering Friday's two panels (here and here). All great reading.
Also, while we are in a documentation mode, let me spotlight just a few of my major Booker commentary posts of note in recent days:
- Burdens of proof and a new due process of sentencing
- Increased sentences post-Booker
- So, what is "reasonable"?
- Are the FSG still mandatory in child crime and sex offense cases?
- Anecdotes, data and the USSC's big challenge
- Do federal sentencing judges have discretion to Blakely-ize?
The 11th Circuit addresses (small) Booker issues!
I had an inkling we might see some federal circuit court action on Booker before the end of this week, and now I can report that, in addition to the Eighth Circuit's remand ruling in Coffey, not-so-casual Friday has also brought us two decisions from the Eleventh Circuit. Both Eleventh Circuit rulings deal with relatively small issues, but they are still significant and consequential rulings
First, in US v. Rubbo, No. 04-10874 (11th Cir. Jan. 21, 2005) (available here), the Court denies an appeal (and blocks a Blakely/Booker claim) by upholding the applicability of an appeal waiver using contract principles to interpret the language of the plea agreement to keep the appeal waiver applicable.
Second, in In re Anderson, No. 05-10045F (11th Cir. Jan. 21, 2005) (available here), the Court refuses to entertain a successive habeas petition based on Booker because, under the terms of the federal habeas statute, such a claim can only be brought after the Supreme Court expressly declares a decision retroactive (which, obviously, has not (yet?) happened). This ruling is a direct echo of the 11th Circuit's Dean ruling in the weeks after Blakely (basics here). In the immortal words of Yogi Berra, it's deja vu all over again.
Burdens of proof and a new due process of sentencing
Steve Sady over at the Ninth Circuit blog has this important and powerful post arguing that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing. Among the potent elements of Steve's argument is its reliance on statutory construction principles layered on top of constitutional concepts.
In addition to noting Steve's extremely valuable post, I want to spotlight the broader idea that the reasoning of Justice Stevens' merits majority to support the Court's interpretation of the Sixth Amendment could — and I think should — engender a wholesale reconsideration (and invigoration) of due process concepts at sentencing. As I discussed at length in this post, I found highly significant that Justice Stevens' opinion for the merits majority in Booker expressly discussed the impact of modern sentencing reforms on the Court's Sixth Amendment jurisprudence. See Stevens slip op. for Court at 12. Part of why this passage caught my eye was because it could be readily recast so as to raise new arguments about the demands of due process in modern sentencing systems.
Consider specifically how changing the Sixth Amendment/jury right language to Fifth Amendment/due process language in the key passage of Justice Stevens defense of the Court's ruling would seem to breathe new life into new due process claims. My alterations are in bold.
Discussing the "new trend in the legislative regulation of sentencing," Justice Stevens explains that "the Court was faced with the issue of preserving an ancient guarantee [of due process] under a new set of circumstances:"
The new sentencing practice forced the Court to address the question how the right of [due process] could be preserved, in a meaningful way guaranteeing that [procedural protections] would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by [Fifth] Amendment formalism but by the need to preserve [Fifth] Amendment substance.
To reiterate a point I make in my recent article in the Winter 2005 issue of the ABA's Criminal Justice magazine, until Apprendi and Blakely came along, few seriously questioned sentencing structures that still relied lax procedures for proving the truth of facts that could lead to extended sentences. But I now read the language of Justice Stevens' opinion for the merits majority in Booker to support the idea, long overdue, that we should not blindly follow old constitutional precedents when examining and applying a radically new sentencing structure.
Increased sentences post-Booker
In this post late last night discussing post-Booker sentencing anecdotes, I noted the story of US District Judge Randy Crane using his new discretion to extend the prison terms of three officials charged with accepting bribes. I also noted that, as detailed in this post, I am not sure due process principles permit a post-Booker sentence increase based on pre-Booker conduct.
Thanks to Peter Henning at White Collar Crime Prof Blog, I now see that the US Attorney's Office in Houston (S.D. Tex.) has issued a press release bragging about these increased sentences. Peter spotlights the due process issues raised by the case in his post, but the press release now has me thinking about prosecutorial ethics and future Justice Department representations about advisory guidelines:
First, though some comments to my prior post suggest that the due process question is contestable, I must wonder out loud if individual prosecutors have an obligation to make an independent judgment (and not wait for a defense objection) about whether the law allows an increase in a post-Booker sentence based on pre-Booker conduct. Relatedly, in the name of consistency, I wonder if Main Justice should issue some sort of directive about this matter to its offices. Otherwise I could imaging varying legal and policy judgments from different US Attorneys Offices about whether to try to reopen and seek longer sentences in past-sentenced cases.
Second, I would bet that DOJ is keeping stats on how many sentences are being imposed below the guideline range now that the guidelines are advisory. I hope DOJ will also track, and be sure to publicly highlight, in how many cases judges expressed an interest in going higher than the guidelines. More generally, though DOJ might be heard to complain that, because of due process limits, advisory guidelines are a one-way ratchet for cases in the pipeline, I hope they will also always acknowledge going forward that advisory guidelines may lead to tougher sentences at least in some cases.
UPDATE: Peter Henning at White Collar Crime Prof Blog has now added some additional terrific insights about these issues here, and he notes that they issues are "particularly important in white collar crime cases because the pressure for an upward sentence ... will be greater in the area of public corruption and corporate/business crime (e.g. accounting, securities, bank, & insurance fraud) than in other prosecutions."
Dynamic state Blakely development
In honor of the now on-going fantastic Columbia Law School conference on state sentencing (which is being blogged here), I will interupt all the federal Booker excitement with a number of very interesting state Blakely stories.
- From Arkansas, I have received a copy of a bill filled in the legisture denominated "An Act to Clarify That the Sentencing Guidelines of the State of Arkansas Are Entirely Voluntary; and for Other Purposes." As the title suggests, the Arkansas sentencing guidelines have long been understood to be voluntary, but this bill wants to leave nothing in doubt after Booker. Here is the concluding paragraph of the bill which can be downloaded below:
It is found and determined by the General Assembly of the State of Arkansas that the United States Supreme Court has held that the federal sentencing guidelines are unconstitutional; that the voluntary presumptive standards of the State of Arkansas may be challenged as unconstitutional; and that this act is immediately necessary in order to clarify that the sentencing guidelines are merely advisory.
- From Indiana, the blog INCourts has here an interesting report on a section of the state Chief Justice's State of the Judiciary address entitled, "Rebuilding the American Jury." As noted in the post, the Indiana Supreme Court has been sitting on two big Blakely cases since November, and thus INCourts has good reason to spend time reading Hoosier tea leaves.
- From New Jersey,it is now official that the Supreme Court of New Jersey will hear appeals from three major Appellate Division Apprendi and/or Blakely rulings. An expedited briefing schedule has been set and oral argument in the cases will be heard on March 1st, 2005. As detailed in this prior post, the state was eager for Supreme Court review because, according to its brief, "uncertainty regarding the effect, if any, of the Blakely opinion on [New Jersey's] ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors."
The 8th Circuit remands!!
In what I believe is the first consequential Booker circuit court ruling, the Eighth Circuit remanded a case for resentencing on Blakely/Booker grounds today in US v. Coffey, No. 04-2176 (8th Cir. Jan. 21, 2004) (available here). The brief discussion of Blakely/Booker in the Coffey opinion is a bit decaffeinated, but the decision is still important for suggesting that, at least in the Eighth Circuit, all preserved Blakely errors result in remands for resentencing. Here's the key passage (with the citations trimmed):
Finally, Coffey claims that he was sentenced in violation of his Sixth Amendment right to a jury trial, as recognized in Blakely. He argues that the district court impermissibly held him responsible for a higher drug quantity than the amount the jury attributed to him. Prior to sentencing, Coffey asserted that there was insufficient evidence to calculate any drug quantity against him. The district court overruled his objection and sentenced Coffey using an offense level applicable to 2.7 kilograms of crack, despite no jury finding in support of this amount.
Whether or not Blakely applied to the United States Sentencing Guidelines is no longer an open question: the Supreme Court has now held that it does. Booker holds the mandatory guidelines scheme employed by federal courts is unconstitutional. Instead, the Guidelines are now "effectively advisory," and defendants such as Coffey who have preserved the issue are entitled to new sentencing proceedings.[FN 5] We thus remand for resentencing in accordance with Booker.
[FN 5] We express no opinion on whether a sentence handed down under the mandatory Guidelines system is plainly erroneous, nor do we consider the outer limits of precisely what will preserve the issue.
So, what is "reasonable"?
The remedial majority's decision in Booker makes "reasonableness" the new standard of appellate review in all federal sentencing cases. Though I suspect we may get some guidance soon from circuit courts about what this standard means, it is fun now to reason through what the reasonable minds of reasonable people might reasonably think qualifies as reasonable. (Of course, until we hear from courts, there is good reason to keep reasonable speculations about reasonable understandings of reasonableness within reason.)
Interestingly, and perhaps unsurprisingly, as detailed the Second Circuit letter briefs available in this post, US Attorneys in some cases are asserting that "sentences within the Guidelines range should be upheld as reasonable, whereas sentences that deviate from the Guidelines should be presumptively unreasonable." Similarly, in a letter I was forwarded (and provide here) from the US Attorney for the WD of New York, there is a strong suggestion that concepts of reasonableness should be closely tied to guideline ranges: Download wdny_usa_letter_re_booker.pdf
But, according to an article I received from federal law clerk Laurie Kelleher and her colleagues, it would be improper to define reasonableness in this way given the holding of the Booker merits majority. In an article you can download below, Ms. Kelleher writes:
If the reasonableness standard proposed by Justice Breyer is interpreted to mean that reasonableness is still defined in light of the relevant Guideline range, then the system would remain one of mandatory ranges.... This result would be inconsistent with the constitutional requirements of Justice Steven's opinion, and therefore, Justice Breyer’s opinion cannot be read in this impermissible way.
Ms. Kelleher's article provides a wealth of additional important insights and suggestions for how to reason through what reasonableness now means.
Still more Booker praise
I noted here and here the many newspaper editorials and other commentators praising Booker. This noteworthy trend continues with laudatory pieces to be found today in the New York Times, the Denver Post and the Indianapolis Star.
And from legal commentators, today also brings pro-Booker sentiments from Professor Edward Lazarus in this terrific Findlaw piece, and from Professor Rory Little in a likewise terrific California Daily Journal article that can be downloaded here: Download booker_dj_op_ed_2005_january.rtf
Are the FSG still mandatory in child crime and sex offense cases?
The Feeney Amendment to the PROTECT Act was most well-known for its various general restrictions on departure authority. However, this 2003 statue also created a special separate provision of 18 USC 3553(b) — specifically 18 USC 3553(b)(2) (see highlighted changes here) — to provide an even more rigid departure standard for child crimes and sex offenses.
A crackerjack reader (who is a federal judicial law clerk) wrote to me to note that the Booker remedial majority never mentions 18 USC 3553(b)(2) — which distinctly mandates that judges follow the guidelines for child crimes and sex offenses — in its discussion of excising 18 USC 3553(b)(1) to make the guidelines advisory. Based on this fact, and other language in Justice Breyer's opinion, this reader suggests the federal guidelines are still mandatory (and must be subject to Blakely-ization for any upward enhancements) for all child crimes and sex offenses covered by 18 USC 3553(b)(2). The reader's full thoughtful argument on this matter is set out in a document which can be downloaded below.
Technically, because neither Booker or Fanfan involved a child crime or sex offense, I am not sure Booker in any way resolves the status of 18 USC 3553(b)(2). In turn, then, I am not sure what judges should do when sentencing a child crime or sex offense (perhaps run their own severability analysis guided by Booker). I am sure that this law clerk has spotlighted a problematic aspect (oversight?) in the Booker remedy opinion. Readers litigating or adjudicating child crimes and sex offenses should be sure to consider (and comment upon) the analysis here:
Reporting anecdotes on post-Booker sentencings
In yesterday's post entitled Anecdotes, data and the USSC's big challenge, I stressed the importance of making sentencing policy based on data rather than anecdote (which is one reason I keep urging Congress to take a deep breath to give the US Sentencing Commission a chance to assemble data and recommendations for federal sentencing in the post-Booker era). But thorough data collection and analysis takes time, and in the meantime there is still value in assembling some anecdotes.
As noted in this prior post, I have heard of some judges following the guidelines closely, some focusing more on punishment purposes in particular cases, and some talking of Blakely-izing after Booker. I encourage readers to report in the comments about post-Booker sentencings and the (varying?) approaches being adopted by district judges.
I can relay some anecdotal reports from local newspaper stories. Particularly noteworthy is this story from Texas detailing a decision by US District Judge Randy Crane to use his post-Booker discretion to extend the prison terms of three officials charged with accepting bribes. Significantly, as detailed in this post, I am not sure due process principles permit a post-Booker sentence increase based on pre-Booker conduct, but this issue will apparently need to be litigated in the days and week ahead.
January 20, 2005
The product of collaborative efforts
As detailed in this post from last night, attorney Alex Eisemann asked to use this space to solicit comments and suggestions as he raced to complete a rapid-fire letter brief for a Booker case in the Second Circuit. The final letter, now filed, can be downloaded below, and Alex asked that I post this note to accompany it:
Here is my response to the government's letters. Not a work of art but, considering the limited amount of time I had to draft it, pretty much made the points I felt necessary. I'd like to thank everyone who contributed ideas, citations and cut-and-paste-able discussions, which they'll recognize in some sections of the letter. If this process proved anything, aside from proving the generosity of others, it was the incredible power of collaborative work over the internet. With a touch of a button, I was able to tap into hundreds if not thousands of legal minds and experience to help put this together in a very short period of time.
One footnote: A courthouse insider tells me the Second Circuit's upcoming decision may be through a case argued last week, so all the help may have been primarily for the benefit of my client but perhaps all three of the pending cases will become part of the Second Circuit's decision. No matter what, I'm grateful for everyone's fine efforts, as will be my client.
Rumor from a federal prison
I was off-line most of the afternoon to attend a terrific meeting of the Ohio Sentencing Commission (in which Blakely/Booker was the topic of conversation). The meeting was amazing for many reasons, and later tonight I will have news and notes on various state Blakely fronts.
But, upon return to my office, I received a curious second-hand report that at least one federal prison initially "had banned all communications sent to prisoners re: Booker, and allegedly did so pursuant to a Bureau of Prisons policy." But then, according to the report I received, as a result of a follow-up call to the prison administrator, "the next day the prisoner received his Booker communications [and the prisoner] was told that the BOP issued a bulletin changing its position."
This report, which perhaps should only be given rumor status, is notable in part because, as detailed here and here, in December BOP had encouraged each of its 100-plus institutions to take appropriate steps to inform prisoners about the outcome in Booker and to make the opinion and other legal materials available. More generally, given the mixed and confusing message that Booker delivers, I am curious about both the prisoner and BOP reaction to the ruling.
Perhaps readers can use the comments to share any news on this front.
Anecdotes, data and the USSC's big challenge
I am hearing a range of post-Booker anecdotal reports from the federal sentencing front-lines. I have heard stories of some district judges following the guidelines closely, apparently taking an approach similar to Judge Cassell in Wilson (basics here, commentary here and here). I have also heard of a few judges focusing more on punishment purposes in particular cases, apparently taking an approach similar to Judge Adelman in Ranum (basics here, commentary here and here). And, as detailed here, I have even heard of some talk of Blakely-izing after Booker.
Notably, the anecdotal reports of on-the-ground developments are now appearing in the papers. This article details a federal sentencing from Hawai'i in which Chief US District Judge David Ezra focused on punishment purposes to justify a shorter prison term for a first offender who has undergone extensive sex-offender treatment after a conviction for downloading child pornography. Similarly, this story from New York details a sentencing decision by US District Judge Richard J. Arcara which seemed to put the focus, in another a non-violent first-offense case, on rehabilitation concerns.
Because newspapers will always focus on cases where defendants were "cut a break," an enormous challenge for the US Sentencing Commission and others will be to keep Congress from making policy by anecdote. In a huge federal system with thousands of sentencings every month, there will inevitably be stories of seemingly extreme decisions (both too harsh and too soft). But no definitive judgments should be made (or responsive legislation drafted) based on a few anecdotes. This is why I keep urging everyone, especially Congress, to take a deep breath to allow us all to see what the US Sentencing Commission data shows for the range of post-Booker cases.
I hope, as suggested in this discussion, that the USSC's data collection will particularly focus on the distinction between violent crimes committed by persons with a long criminal history and non-violent crimes committed by first offenders. My instinct is we will see a lot of guideline following in the former cases, and more variations in the latter cases. But only the data, and not a few anecdotes, will tell.
January 20, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (7) | TrackBack
Do federal sentencing judges have discretion to Blakely-ize?
Perhaps throwing an interesting curve into the developing debate over how to interpret and apply Booker, I have been hearing buzz about some federal district judges indicating that, following the holding of the Booker merits majority, they believe they should rely only on facts found by a jury or admitted by the defendant when calculating (now advisory) guideline ranges.
I am fairly certain that the holding of the Booker remedial majority does not require compliance with Blakely when calculating (now advisory) guideline ranges. But it is a distinct, and quite interesting, question whether district judges in exercising their post-Booker discretion are permitted to demand that all sentence-enhancing facts be found by a jury or admitted by the defendant.
Arguably, this issue might be thought to dovetail with the debate over how much weight to give to the (now advisory) sentencing guidelines. A judge inclined, like Judge Cassell in Wilson, to treat the guidelines as nearly mandatory might sensibly decide he or she should only rely on those facts found by a jury or admitted by the defendant; a judge inclined, like Judge Adelman in Ranum, to treat the guidelines as more advisory might sensibly decide he or she can and should more readily rely on facts not found by a jury or admitted by the defendant.
Signs of the (crowded prison) times
Marc Mauer, assistant director of The Sentencing Project and the author of "Race to Incarcerate," has this important op-ed which encourages Congress to use this Booker moment to examine more broadly "the unprecedented harshness of the policies adopted over the past 20 years, which have combined to produce a prison population unimaginable until recently." Significantly, key republican Senators on the Senate Judiciary Committee and AG nominee Alberto Gonzales suggested at recent confirmation hearings, as detailed here, that there may be some hope of moving from being only "tough on crime" to becoming more "smart on crime."
As noted previously here, many states in recent years have taken steps to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration. And Republicans Governors, from Alabama to Maryland to Michigan to Texas, have been among the leading proponents of this notable modern shift from penal retribution toward rehabilitation. And, as detailed in this recent LA Times article, republican Governor Arnold Schwarzenegger just this month announced his plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission."
Of course, budget and prison overcrowding realities are a major catalyst for "smart on crime" reforms in the states. Indeed, newspaper articles today from Alabama to Vermont to Texas highlight that two decades of toughness may have (at least economically) reached a tipping point in many states. (As detailed in this post, the blog Grits for Breakfast has done a terrific job covering Texas prison overcrowding issues.) And, because tight budgets do not seem to impact federal criminal justice policy-making, I am not sure we should be too optimistic that Congress will follow the lead of the states in any post-Booker reforms.
Remember Blakely in the states
Not surprisingly, the decision in Booker has started a dramatic and uncertain new federal chapter in the Blakely story. But, as I have suggested previously, the federal story after Booker is really just a relatively minor (headline-grabbing) solar system within a vast Blakely universe. We should never forget that states handle over 90% of the criminal cases nationwide, and both Blakely and now Booker provide many more questions than answers for state actors and institutions.
And the state Blakely story keep chugging along after Booker. (A full account of all my pre-Booker posts on Blakely in the states can be found here.) For example, as documented in this article from Alaska, state legislatures are continuing to sort through possible modifications to conform their existing sentencing structures to Blakely. And, as documented in this article from California, state courts are continuing to sort out the applicability of Blakely to current cases.
Notably, I already count more than 50 additional on-line state court Blakely rulings just since Booker was handed down last week, the most of course coming from California (which now has over 350 Blakely ruling to date and also wins the award for having the first on-line state court opinion to mention Booker.)
More praise of judges judging
Continuing the parade of newspaper editorials praising Booker (many of the prior editorials are noted here), Howard Bashman has links here to a few more pieces praising the Supreme Court's decision which will allow judges to do more judging. I can also add to the growing list of pro-Booker editorials this piece from Montana.
Relatedly, continuing my praise of the judicious work done in Judge Adelman's Ranum opinion today, Ellen Podgor over at the White Collar Crime Prof Blog has this thoughtful post on the decision. She astutely concludes:
This [Ranum] decision provides a wonderful model for white collar decisions in the post-Booker world. It demonstrates that white collar offenders will not skate from jail time as a result of the Supreme Court's ruling. It also demonstrates how judicial discretion can offer reasoned analysis to fit the specific circumstances of a case.
January 19, 2005
A plea for help in the 2d Circuit
Attorney Alex Eisemann wrote to me this evening to report that "by sheer luck, I believe I'm one of the two cases that will be the vehicle for the Second Circuit's upcoming Booker decisions." (Background here) Alex explains:
The panel hearing my case this morning — 2/3 of whom heard the companion case yesterday and consisting of Judges Leval, Straub and Katzmann — ordered me to respond to the attached letter brief from the Government (served at 5pm and received by me at 9pm today) by noon tomorrow (Thursday). [This letter can be downloaded below.]
Assuming you find it appropriate, could you please post this ASAP and invite readers to comment and offer suggestions on it. Any comments and suggestions must be in by 11:30am Thursday, if I'm to incorporate them and meet the noon deadline. Please also ask people to be brief and to the point (unlike some of my own posts) and to write in "formal" style if possible, so I can cut and paste parts into my upcoming response.
I find posting this request appropriate — after all, last month, as detailed here and here, I used this space to help a victim's family member develop a brief to support a death sentence. Alex can be reached at firstname.lastname@example.org
The 2d Circuit prepares to decide
It took only a week to get some (wonderfully distinct) district court perspectives on Booker (details here and here), and now I am eagerly anticipating some circuit court action before long. Recall that we got Booker from the Seventh Circuit just over two weeks after Blakely, and within 4 weeks of Blakely we had a five-way circuit split. And Blakely was a state case!
Whetting our appetite, today I received an interesting order from the Second Circuit, which is available for downloading below. The order is just procedural, telling all the lawyers in the 200+ pending cases not to file supplemental papers (as had been previously ordered) in order to avoid "an unnecessary burden on counsel for the defendants and the Government." But the order also has this exciting teaser:
It is anticipated that a panel of this Court will expeditiously issue an opinion adjudicating the merits of a sentencing appeal in light of Booker and Fanfan.