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October 6, 2014

Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case

Regular readers likely recall a number of posts about the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, this case, Jones v. US, No. 13-10026, was consider by the Justices at their "long conference." When there was subsequently no announcement of cert being granted last week, I assumed today's SCOTUS order list (noted here) would include Jones v. US, No. 13-10026, on the long list of cases for which certiorari was denied.

But, while the Justices surprised many court-watchers today by denying cert on all the same-sex marriage cases, they surprised me by "relisting" Jones v. US, as noted in this official docket report, for consideration again at the Court's conference this coming Friday.  This is relatively big news — to the extent that not making a cert decision is big news — because a relist is usually a strong signal that one or more Justices are strongly interested in the case and want some more time to mull over the possibility of a grant of cert or some other significant action.

Still, as the title of this post is intended to connote, I am trying real hard to resist getting excited by the prospect of cert being granted in Jones (and/or in another acquitted conduct case) real soon.  It is quite possible — dare I say perhaps even likely — that this relist is just a sign that a Justice or two is working on a dissent from the denial of cert review and need another few days to put the finishing touches on that dissent.   Indeed, given how crisply the acquitted conduct issue is presented in Jones and how many prior petitions have failed to garner the votes need for a cert grant in recent years, it is hard to imagine that the Justices want or need more time to mull this over.  But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.   

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 6, 2014 at 06:42 PM | Permalink

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Comments

Last term, it seemed the overwhelming majority of cases where cert was granted were relisted at least once. So I wouldn't be pessimistic after one relist (better than just a denial). However, if there's a second relist, then I'd lose hope. This case has vigorous dissent from denial of cert written all over it.

Posted by: Erik M | Oct 6, 2014 6:48:15 PM

My fingers are crossed… I really want them to take this one.

Posted by: Mark Osler | Oct 7, 2014 8:52:51 AM

Take the case then reaffirm that a within statutory range sentence is within the statutory range, that Booker deference to the district court is not simply a one way ratchet to shorter sentences.

Posted by: Soronel Haetir | Oct 7, 2014 4:39:04 PM

Denied.

http://www.supremecourt.gov/orders/courtorders%5C101414zor.pdf

Posted by: Joe | Oct 14, 2014 9:44:45 AM

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