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September 11, 2007

Ninth Circuit panel reverses course on equitable Booker relief

Today, a Ninth Circuit panel in Carrington v. US, No. 05-36144 (9th Cir. Sept. 11, 2007) (available here) decided to change course on allowing certain defendants to get resentenced after Booker through the recalling of prior mandates.  Specifically, it appears that since this prior opinion in the case, one panel member (Judge Noonan) changed his mind/vote, and here is how he starts his separate opinion in the new disposition:

Resolution of this appeal turns on how the constitution is conceived to be.  For some, the constitution is an unchanging document, speaking now as it did in 1789 except for such amendments as have been duly added to it.  The paper and ink of the old document have not altered; neither has its meaning.  Stability is the bedrock of our government of laws.

In the same interesting vein, Judge Noonan closes his opinion with this interesting response to Judge Pregerson's dissent:

The strength of Judge Pregerson’s position must be acknowledged.  It is humane, and humaneness is a necessary quality in humans who are judges.  The panel has the power to do what he asks.  The panel does not have the authority.

Because I was a fan of the original Carrington opinion (as detailed here and here and here), I am not too pleased to see this panel do a 180 on this fascinating Booker issue.  (Also, I have to like Judge Pregerson's dissent because it cites this blog in a footnote.)  For lots of (needed) background and good commentary on these matters, check out these prior posts and their comments:

September 11, 2007 at 05:04 PM | Permalink

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