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October 17, 2006

What exactly is the Sixth Circuit rehearing in Vonner?

As first discussed here, late last week the Sixth Circuit issued an order granting en banc review in US v. Vonner (which, as detailed here, was a split panel decision in which the majority declared a within-guideline sentence unreasonable for "lack of adequate explanation").   As noted before, by taking Vonner en banc, the Sixth Circuit joins the Ninth Circuit in now having a big en banc case to use to provide its district courts with guidance on post-Booker sentencing.

But, now nearly a week after the Vonner en banc grant, I am a bit puzzled about what the Sixth Circuit wants or expects to cover in Vonner.  As detailed here, when the Ninth Circuit went en banc it issued this lengthy order detailing what the en banc court was exploring (and welcoming amicus briefs on these issues).  I have not yet seen a similar order from the Sixth Circuit in Vonner, though perhaps one might be forthcoming or has been issued and just is not yet posted for all to see.

I am perplexed in part because a colleague sent along the petition for (and opposition to) rehearing, and these papers do not effectively clarify exactly what is at issue in Vonner.  I have provided these brief for downloading below, and I would welcome insights into exactly what folks think are the issues in play in Vonner.

Download vonner_us_petition_for_rehearing_and_rehearing_en_banc1.pdf

Download vonner_johnson.response to en banc petition.05-5295.pdf

October 17, 2006 at 06:06 PM | Permalink

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This should not be so perplexing. An en banc argument and decision should not be different from an ordinary, three-judge-panel appeal. The parties will argue their case, the court will ask questions, and the court will issue its decision. I am more concerned about appellate courts -- including SCOTUS -- trying to use cases to "set up" an issue, or "mold the debate," or other similar things. These are just cases. The court simply needs to decide each case based on the law. When judges start to see cases as instrumentalities -- whether for giving instructions to the lower courts or to others -- they intentionally go down the road to policy-making, for which they lack political legitimacy, and even skills.

Specifically with regard to Booker, by trying to use cases to set "policy," the courts of appeals will inherently move away from: 1) the Supreme Court's decision (on both "merits" and "remedy"); and 2) Congress' language in 3553. You, Prof. Berman, have done a great job trying to keep people focused on two elements of 3553: the fact that the Guidelines are only one factor among many, and the parsimony requirement. When the courts of appeals move away from deciding cases based simply on "the law," they will shy away, in this situation, from Congress' own mandates in 3553. Instead, they will try to come up with their own system: presumptions, burdens of proof, burdens of production, "reasonableness." A presumption that "Guidelines sentences are presumptively valid" serves no purpose in deciding a case; it is intended to try to tie the hands of future panels. Who cares about a presumption in a given, specific appeal? Presumptions are simply a way of trying to short-circuit the job of the appellate court. The question in each appeal involving a Guidelines sentence, or non-Guidelines sentence should be the same -- unless, and this is the key here, you are trying to use presumptions to bind the hands of fellow panel members or future panels.

I am not so naive as to think that the courts, particularly appellate courts, do not, at some level, set policy. But the parameters of that job need to be strictly conscribed in a democratice republic. The Sixth Circuit may be doing exactly what the Ninth Circuit is doing, only silently. I don't know. But the process chosen by the Ninth Circuit leads them down a direction that is bad for our democracy (even though it is the sort of thing that academics love).

Mark

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