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December 31, 2004

Three interesting (and long) reads from the Ninth Circuit

The Ninth Circuit has issued three interesting sentencing opinions over the last few days (thank to How Appealing and a reader for tips).  All the cases touch on Blakely issues briefly, but they are more interesting for their facts and for highlighting the intricacies and complications of federal sentencing laws.  I cannot detail all the particulars, but I can provide a cursory overview.

In US v. Lopez-Zamora, No. 03-50304 (9th Cir. Dec. 29, 2004), the defendant appealed the denial of a downward departure in an illegal entry case based on the minor nature of a prior felony.  The court explains that the defendant's argument requires an analysis of "the interplay among three versions of the United States Sentencing Guidelines § 2L1.2(b)(1)(A) — the 1995, 1997, and 2001 versions."  Twenty pages later (and over a 9 page dissent), the court concludes a departure would have been legally permissible, but it still affirms the district court's sentence.  And the court relies on the prior conviction exception to dispose of any Blakely concerns.

In US v. Bad Marriage, No. 03-30404 (9th Cir. Dec. 30, 2004), the Ninth Circuit reverses an upward departure based on the defendant's criminal history in an assault case.  Here's the provocative opening paragraph of the opinion:

This case is a powerful indictment of the criminal justice system.  Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise.  These problems cry out for treatment, not simply more prison time.

The court then needs 23 pages to reject the upward departure by the district court (and along the way explains that, by invalidating the departure on the facts, "we do not resolve whether, or how, Blakely affects upward departures" based on criminal history).  The dissent here needed only 5 pages to express disagreement with the court's holding.

In US v. Gordon, No. 03-10322 (9th Cir. Dec. 30, 2004), the court examines the $27 million restitution order imposed in a major wire fraud case involving a "promising federal appellate law clerk gone bad."  After 23 pages of intricate analysis of the federal restitution statutes (and after dropping a footnote to note the Ninth Circuit's view that restitution orders are not impacted by Blakely), the court partially affirms and partially reverses the district court's restitution order.  One member of the panel adds six pages to explain his partial dissent.

All tolled, these cases provide 90 pages of federal sentencing fun to keep sentencing nerds busy while we wait to ring in the new year.

December 31, 2004 at 01:35 AM | Permalink


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