The joy of footnotes

I am back from my whirlwind trip to the Windy City.  But there is no rest for the weary, as I now need to gear up for the US Sentencing Commission hearing planned for next week.  I hope to be able to post my written testimony and others before I leave for the event Tuesday morning.

While in transit, I have a chance to read the two interesting circuit decisions noted here.  Both decisions provide a thoughtful and telling windows into the doctrinal intricacies and practical realities of federal guidelines sentencing.  And, ever engaging, both decisions have hysterical footnotes that merit the spotlight.

In US v. Vasquez, No. 03-1763 (2d Cir. Nov. 10, 2004) (available here), Judge Jon Newman (my former boss) is relaying the facts of a prison guard's conviction for sexual misconduct with inmates.  After describing the defendant as a guard, Judge Newman drops this inspired footnote:

We are aware that the formal job classification in the Bureau of Prisons is "correctional officer," a modern label that implies, somewhat extravagantly, that the officer will play some role in "correcting" the wayward inmates in his charge.  However we might refer to law-abiding custodians at FCI-Danbury, it would be hypocritical to call Vasquez a "correctional officer."

Meanwhile, in US v. Andrews, No. 03-51367 (5th Cir. Nov. 11, 2004) (available here) the Fifth Circuit reverses a sentence imposed by a district judge who used unlawful means to throw the book at a defendant convicted of defrauding an elderly neighbor.  In the course of castigating the judge for not following the limits of the sentencing guidelines, the court drops this footnote:

The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit. See Andrews, 301 F. Supp. 2d at 609 (stating that the “Eighth Circle” would be appropriate for Andrews’s co-conspirator); see also id. at 612 (stating that the “Fourth Circle” is appropriate for those who prey on the elderly); but cf. United States v. Winters, 117 F.3d 346, 348 (7th Cir. 1997) (affirming denial of a downward departure despite district court’s feeling that defendant belonged on a lower level of hell, citing Dante’s Inferno).