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February 26, 2007

Notable cert news from SCOTUS

SCOTUSblog has the news and links on today's cert grants and denials resulting from last week's conference among the Justices.  Here's Lyle Denniston's report on the one criminal law grant:

The Court also agreed to decide when a gun is "used" during a drug crime, leading to a mandatory five-year sentence.  The specific issue in Watson v. U.S. (06-571) is whether a gun is "used" if an individual trades illegal drugs for a gun.  The Circuit Courts are split deeply on the issue.  The appeal by a Louisiana man, Michael A. Watson, relies primarily upon a 1995 Supreme Court ruling, Bailey v. U.S.

Perhaps as notable for sentencing fans is news that cert was denied in the Berger case (recently discussed here).  Here is Lyle's report on this cert denied:

[T]he Court on Monday refused to hear [w]hether it is unconstitutional to impose a criminal sentence that runs for decades -- 200 years, in this instance -- because each count is sentenced separately and each sentence must be served consecutively.  The case of Berger v. Arizona (06-349) involved a 200-year sentence based on 20 counts of possessing child pornography.

Of course, this completion of direct review is not the end of the road for the Berger case.  I assume that a cert petition will soon be filed in federal court, and I believe there is some notable Ninth Circuit precedents that should perhaps give Morton Berger some hope on habeas.  Indeed, I would put the odds at 50/50 on whether Berger gets habeas relief of some sort; if he does (or even if he doesn't) the Supreme Court will likely eventually get another bite at this particular sentencing apple.

February 26, 2007 at 10:58 AM | Permalink

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Comments

Here is the cite to the unpublished 5th Cir. opinion in Watson: 191 Fed.Appx. 326.

It is exciting news that the Court will again interpret the scope of the oft-used 924(c) mand. min. statute. But in the Bailey opinion itself the Court included "bartering" among those activities constituting "active employment" or "use" of a firearm. Bailey, 516 U.S. 137, 148 (1995). And the Court likely included this term to confirm its holding in Smith v. US, 508 U.S. 223 (1993), which held that exchanging guns for drugs is "use" of a firearm under 924(c).

While I don't know all the facts of Watson, the unpublished opinion implies that the defendant was giving drugs in exchange for a gun. In Smith, however, the defendant was giving a gun in exchange for drugs. Considering the Court has once held and again confirmed that bartering is "use," I find this cert grant intriguing.

Posted by: DEJ | Feb 26, 2007 11:48:15 AM

Doug,

Wouldn't AEDPA get in the way of granting habeas relief in federal court? If the court of appeals tried to ignore binding law and grant relief anyway, presumably the Supreme Court's per curiam summary reversal wouldn't reach the merits. (And presumably wouldn't use the opportunity to revolutionize 8th Amendment law in the way you would prefer.)

Posted by: Orin Kerr | Feb 26, 2007 12:25:13 PM

Orin: I was hoping SCOTUS would grant cert because I do think AEDPA presents new problems for the defendant in the habeas context. But I think an argument can be made --- though perhaps not a convincing one --- that the Arizona court's application of SCOTUS precedent was clearly unreasonable.

Here's the basic pitch for finding an Eighth Amendment violation in light of existing SCOTUS precedents: SCOTUS has said that some non-capital sentences violate the Eighth Amendment as disproportionate. If not Berger's, than whose?

Posted by: Doug B. | Feb 26, 2007 12:37:40 PM

A link to the USCA 5 opinion in Watson is available at C&C.

On Berger, I think Orin is correct that AEDPA as applied in the disproportionate noncapital sentencing context in Lockyer v. Andrade will probably prevent federal habeas relief in this case. Doug's "basic pitch" didn't work too well for Andrade.

Posted by: Kent Scheidegger | Feb 26, 2007 2:33:39 PM

I tend to think that if the Court wasn't interested in Berger on direct appeal, they would have even less interest in the habeas context — unless it's to reverse the Ninth Circuit.

Posted by: Marc Shepherd | Feb 26, 2007 2:46:55 PM

I am the attorney who lost in Smith v. US regarding the guns for drugs issue. Bailey confirmed the decision in Smith.

I hope the Court's decision vindicates my argument, now, 14 years after the Smith decision in 1993.

Posted by: Gary Kollin | Apr 12, 2007 1:03:22 AM

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Posted by: DFDF | Jul 29, 2007 1:20:44 AM

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