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March 31, 2008

Ninth Circuit continues to expound on federal sentencing circa 2008

As noted in this post, the Ninth Circuit last Monday finally issued its en banc rulings in Carty and Zavala to expound upon its view of post-Booker federal sentencing law and practice.  To close the week, the Ninth Circuit applied its newly-described wisdom in US v. Crawford, No. 06-30205 (9th Cir. Mar. 28, 2008) (available here).  This post at the Ninth Circuit Blog provides an astute take on the post-Booker path being taken out west.  Here is part of the analysis by Steven Sklar:

Chief Judge Alex Kozinski loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule....

Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence ... [as he] crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.”...

Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice.... Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.”  On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:

  • failure to calculate, or incorrect calculation, of the guideline range;
  • treating the Guidelines as mandatory instead of advisory;
  • failure to consider the § 3553(a) factors;
  • choosing a sentence based on clearly erroneous facts; and
  • failure to adequately explain the sentence selected, including any deviation from the Guidelines range.

March 31, 2008 at 09:57 AM | Permalink


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