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March 5, 2009

Oral argument transcripts in sentencing cases now available

Though it took a while for them both to appear, the oral argument transcripts in the sentencing cases argued before the Supreme Court yesterday (background here) are now available:

March 5, 2009 at 04:25 PM | Permalink


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I have two significant reactions from the Dean oral argument:

First, this case may turn on the principle announced in Harris (i.e. a fact establishing a mand. min. are not elements). Thus, the case could be used by some Justices disagreeing with Harris to re-iterate their concerns.

JUSTICE STEVENS asks: What's the difference between a sentencing factor that adds five years to a sentence and an element of the crime? There are a lot of us that think that -- you've read Harris and Apprendi. You know there is some debate about whether that really makes all that much difference. (Transcript at 32).

Somewhat in reply, the GOVT argues that the presumption of "intent" is not applied because: "it's increasing the minimum; and that is a significant difference, Justice Stevens that this Court has recognized with respect to these various factors in Harris itself, that the -- whether or not there was a discharge." (Transcript at 35).

And in rebuttal DEAN's counsel argues: "merely because this might be a sentencing enhancement rather than an element of the offense, this Court never says that the normal rules of statutory construction cease to apply under those circumstances, which means that the mens rea presumption is appropriate in this case..." (Transcript at 53).

Second, Justice Breyer may be interested in developing a new "mandatory minimum rule of lenity." In saying that the "presumption of intent" may not apply to sentencing factors (see point 1 above), Breyer then says maybe it should apply to mandatory minimums.

"BREYER: Now, that would be a rationale for a rule of lenity in mandatory minimum sentencing matters.
GOVT: But that would be a reconceptualization of the rule of lenity, Justice Breyer.
JUSTICE BREYER: Yes, it would. It would." (Transcipt at 37).

This mandatory minimum case (along with Flores-Figueroa, which also deals with the mens rea of a mand. min.) could get interesting.

Posted by: DEJ | Mar 5, 2009 7:43:37 PM

How many 10's of millions of Americans know they owe the federal government up to four years for each call they made to buy this or that? That the government can't or won't prosecute them is irrelevant. They are felons, federal felons, that were not caught or prosecuted under this law. Amazing, 10's of millions. Maybe 100 million. What percentage of the voting population are federal felons?

Posted by: George | Mar 5, 2009 11:03:08 PM

Looks like a unanimous win for Abuelhawa. Another ridiculous government position rejected.

Posted by: Guest poster | Mar 6, 2009 6:29:13 PM

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