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June 1, 2009

Ninth Circuit finds another within-guideline sentence substantively unreasonable!!

I am excited to report that, only about 4.5 years after the Booker ruling, the Ninth Circuit has managed to find a second within-guideline sentence to be substantively unreasonable.  Regular readers may recall the Ninth Circuit was the first to find an unreasonable within-guideline sentence in the unpublished Paul case a few years ago (basics here), and this time around the Ninth Circuit went to the trouble of making sure its ruling is published.  The ruling comes in US v. Amezcua-Vasquez, No. 07-50239 (9th Cir. June 1, 2009) (available here), and here is how the panel decision begins:

Javier Amezcua-Vasquez (“Amezcua”), a native and citizen of Mexico, appeals his 52-month prison sentence for attempting to reenter the United States unlawfully in violation of 8 U.S.C. § 1326.  Nearly fifty years after becoming a permanent resident and more than twenty years after completing a four-year sentence for assault with great bodily injury and attempted voluntary manslaughter, Amezcua was deported to Mexico as an alien convicted of an aggravated felony.  Shortly thereafter, he was apprehended re-entering the United States.  He was indicted and pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326.  The district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which was predicated on Amezcua’s twenty-five-year-old convictions, and imposed a Guidelines sentence of 52 months imprisonment.  We vacate Amezcua’s sentence as substantively unreasonable under United States v. Booker, 543 U.S. 220 (2005), and remand the case to the district court for resentencing.

Notably, two of the three judges on the panel that decided Amezcua-Vasquezare appointees of Republican presidents, and thus folks should resist the urge to assume that this important ruling reflects the judgment of just the more liberal members of the Circuit.

As the start of this post highlights, I am not especially amazed or impressed that the Ninth Circuit managed to find a second within-guideline sentence substantive unreasonable.  Rather, I remain amazed and depressed that no other circuit has managed to find a single within-guideline sentence unreasonable as we approach the fifth anniversary of Booker and reasonableness review.  Whether applying a presumption or not, it seems clear that nearly all the circuits continue to embrace the basic (and highly questionable and largely self-serving) notion that any within-guideline sentence is surely a reasonable application of the sentencing factors Congress set out in 3553(a).

June 1, 2009 at 02:47 PM | Permalink

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Comments

Excellent opinion. Congrats to the Ninth Circuit!

Posted by: Michael R. Levine | Jun 1, 2009 3:16:24 PM

Let's just hope that this undesirable alien gets the message and stays out of the US.

Posted by: federalist | Jun 1, 2009 4:19:14 PM

federalist. Supremacy Claus hasn't even posted yet.

Posted by: Daniel | Jun 1, 2009 4:35:50 PM

Professor, Professor, Professor: I don't know what to do. Is there a principal's office in law school where you can be sent, until you learn to start listening. Is corporal punishment permitted in law school?

"Notably, two of the three judges on the panel that decided Amezcua-Vasquezare appointees of Republican presidents, and thus folks should resist the urge to assume that this important ruling reflects the judgment of just the more liberal members of the Circuit."

Aw, comeon.

The criminal cult enterprise indoctrination? The Rent Seeking Theory? Trumps all political ideology, and even all consideration of family, self, and employer? Any of this sound familiar?

I try and try.

Posted by: Supremacy Claus | Jun 1, 2009 9:50:03 PM

I like the ruling, too, but I'm not a bit surprised rulings like this are rare.

The guidelines were never about making punishments justly fit crimes. They were a platform for the reactionary conservatives who drafted them to demagogue the crime issue. They were a power tool for prosecutors to use to more efficiently coerce plea agreements.

Pity the two outlier Republican judges who let down their ideological guard in a fleeting moment of fairness. No doubt they'll have some explaining to do at the next meeting of the GOP club the appeals courts have become.

Posted by: John K | Jun 2, 2009 12:03:06 PM

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