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December 3, 2004

The 11th Circuit (sort of) speaks on retroactivity

With many thanks to Howard Bashman at How Appealing for the tip here, the Eleventh Circuit issued today a brief order denying rehearing en banc in US v. Levy (original discussed here), which led to lengthy concurrences and dissents addressing the retroactive application of Blakely.

I will need at least part of weekend to consume and comment on the opinions, which can all be accessed here, though I can say now that I never get tired of non-decisions making news in the Blakely world.  There is also an amazing Apprendi retroactivity case that came down from the Illinois Supreme Court yesterday that I also hope to discuss at length this weekend.

December 3, 2004 at 05:18 PM | Permalink


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good evening, and thank you for the reference to the 11th circuit issued today. am i the only one, or is there a problem accessing the pdf file?

Posted by: mary | Dec 3, 2004 6:36:28 PM

Mary, I had a problem printing the pdf. Not sure what to do, but this should be on lexis and westlaw and perhaps other on-line outlets soon. Also, I will have quotes/commentary this weekend.

Posted by: Doug B. | Dec 3, 2004 9:51:51 PM

The file seems not to open with the Acrobat browser plug-in. It downloads just fine, though. Because access to the the 11th Circuit site seems to be intermittent, I have put the PDF file up on my server temporarily. The address is in a brief post from today, 12/5, about retroactivity and timing of Booker, Fanfan, and the two Indiana cases on the near horizon. (I don't seem to be able to put web addresses into comments on Doug's blog.)

The file's only going to be there temporarily, since it's 200+Kb. Maybe Doug could put it up permanently with his massive amount of storage. It's a very important opinion. I don't have all the research and details nailed down just yet, but essentially, the majority opinion is like the DOJ torture memo: it looks like a solid piece of well-researched legal reasoning and simultaneously nigh unto nonsense.

At least that's my initial take. I've changed my mind so many times about so many aspects of Blakely, I sometimes wonder if I have a mind left to make up.

Posted by: MIchael Ausbrook | Dec 5, 2004 8:21:56 PM

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