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July 23, 2004

The Eighth Circuit speaks!!

I just got word that in US v. Mooney, the US Court of Appeals for the Eighth Circuit in a per curiam decision from a panel with Judges Murphy, Lay, and Bright, affirmed the defendant's convictions for mail fraud, securities fraud and money laundering and then "remand[ed] Mooney’s sentence to the district court for consideration of the issue he raises under Blakely v. Washington."

In a separate opinion, Judge Lay and Judge Bright hold that the federal Sentencing Guidelines are unconstitutional because they violate a defendant's Sixth Amendment right to have a jury find beyond a reasonable doubt and all facts legally necessary to his sentence, and the court adopts the approach set forth in US v. Croxford (D. Utah June 29, 2004) treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence; on remand the district court should exercise its sound discretion to resentence defendant within the statutory minima and maxima of the offenses for which he was convicted. Judge Murphy — who was the Chair of the US Sentencing Commission until a few months ago — dissents from the majority opinion holding the guidelines unconstitutional.

UPDATE with analysis: Though not making as many important rulings as the Ninth Circuit decision in Ameline (details here and here), this decision in Mooney is fascinating and important in large part because of the cast of characters and also the factual setting. Though deeper commentary will follow late tonight, it bears note now that Judges Bright and Lay are both long-standing critics of the federal guidelines. See, e.g., Stith & Cabranes, Fear of Judging pp. 195-96 (1998) (lengthy endnote detailing copious (pre-Feeney) judicial criticism of the guidelines). And, as noted above, Judge Murphy served with distinction as the head of the USSC for over four years until resigning earlier this year. And, just to make the story richer, the sentence being reviewed was imposed by Judge James Rosenbaum, a name well known to those who closely follow federal sentencing reform (background here).

Of course, also in this interesting cast of characters is the defendant, Michael Mooney, who is not a low-level drug dealer but a former corporate vice-president convicted of insider trading. The decision in Mooney shows how complicated the guidelines make sentencing for economic crimes and also the challenges likely posed if complex financial issues have to be resolved by juries in the post-Blakely world. The decision also reveals — though it does not discuss at any length — the potentially very important and very challenging distinction between sentencing issues of law (what legally qualifies as "gain") and sentencing issues of fact (how much "gain" was in fact realized).

July 23, 2004 at 01:12 PM | Permalink


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So the big question is, what is the law in the Eighth Circuit? Does the Lay-Bright "additional opinion" create binding precedent when they say "we direct the district court to follow Judge Cassell's procedure of treating the Guidelines as _non-binding_ but advisory, unless the defendant consents to a Guidelines sentence"?

Posted by: District Clerk Battling Blakely | Jul 23, 2004 3:22:34 PM

Student - It's good to know that convicted tax evaders can still be vice presidents in major corporations.

Posted by: x | Jul 23, 2004 5:02:46 PM

Defense lawyer in the 8th Circuit, I am shocked and amazed! I was sure that my circuit would line up with the 5th Circuit on Blakely. You are sure right there is a lot of hair-splitting on the finer points at the end of this Mooney decision. It does get messy. I was also struck by the irony of Judge Murphy, formerly of the U.S. Sentencing Commission, being on the 8th Circuit panel that held the guidelines unconstitutional. I actually got the word on this decision from the blog even though I check the Circuit's website daily for opinions. How weird is that? Thanks for helping us stay abreast of this. The Govt is on the run. Let's keep it that way.

Posted by: Jeremy Murphy | Jul 23, 2004 11:29:07 PM

You are sure right there is a lot of hair-splitting on the finer points at the end of this Mooney decision.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:41:36 AM

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