June 21, 2007
The one circuit indirectly reversed in Rita
As I first noted here, the Supreme Court's decision in Rita upholds the Fourth Circuit's decision to adopt a presumption of reasonableness for within-guideline sentences, but also indirectly approves of other circuits' decisions to resist adopting this presumption. So, it might seem that all circuit approaches to post-Booker law and practice have been sanctioned by Rita.
But, because the Rita decision suggests the continued validity of "traditional" departure analysis after Booker, one of the Seventh Circuit's post-Booker views has been indirectly reversed. Recall that the Seventh Circuit has said repeatedly that departures are obsolete after Booker, and this seem to be plain wrong after Rita. (Notably, the Ninth Circuit also seemed to agree on this point, though less emphatically and it still have a pending en banc action to sort through post-Booker/Rita realities for its district courts.)
June 21, 2007 at 04:06 PM | Permalink
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Another has arguably been reversed, and that is the First Circuit which has approved or required that DCTs give "substantial weight" to the guidelines at sentencing, which is arguably the DCT version of a presumption.
Posted by: abe | Jun 21, 2007 9:36:12 PM
You likley already noticed, but it looks like the Seventh also went down on its abandonment of the notice requirement--(32(h)and Burns). Check out the last paragraph of Breyer's Part II-A
Posted by: | Jun 22, 2007 2:51:53 PM