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September 30, 2009

Ninth Circuit judges talking about meaning and import of Paul reversal(s)

Federal sentencing fanatics know that the Paul case in the Ninth Circuit is significant because it was arguably the first (and might still be considered the only) circuit ruling that a within-guideline sentence should be reversed as substantively unreasonable.  The initial story of Paul is discussed in this 2007 post and a subsequent 2009 ruling after a remand for resentencing is discussed in this post

Now, as evidenced by this new order refusing en banc review, the Ninth Circuit has added an extra chapter to this story.  Specificaly, consider this opening paragaph from a dissent from the denial of rehearing en banc in Paul (which was joined by four other circuit judges):

This case decides whether a district court violated a mandate from the court of appeals.  It does not decide whether Paul’s sentence was substantively unreasonable, despite language in the opinion that could mislead readers.  I write separately in an attempt to forestall the confusion that has already arisen from the way in which the majority has chosen to draft its disposition.  I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul’s sentence was substantively unreasonable.

September 30, 2009 at 01:45 PM | Permalink

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