« Burdens of proof and a new due process of sentencing | Main | Always remember to show your work »

January 21, 2005

The 11th Circuit addresses (small) Booker issues!

I had an inkling we might see some federal circuit court action on Booker before the end of this week, and now I can report that, in addition to the Eighth Circuit's remand ruling in Coffey, not-so-casual Friday has also brought us two decisions from the Eleventh Circuit.  Both Eleventh Circuit rulings deal with relatively small issues, but they are still significant and consequential rulings

First, in US v. Rubbo, No. 04-10874 (11th Cir. Jan. 21, 2005) (available here), the Court denies an appeal (and blocks a Blakely/Booker claim) by upholding the applicability of an appeal waiver using contract principles to interpret the language of the plea agreement to keep the appeal waiver applicable. 

Second, in In re Anderson, No. 05-10045F (11th Cir. Jan. 21, 2005) (available here), the Court refuses to entertain a successive habeas petition based on Booker because, under the terms of the federal habeas statute, such a claim can only be brought after the Supreme Court expressly declares a decision retroactive (which, obviously, has not (yet?) happened).  This ruling is a direct echo of the 11th Circuit's Dean ruling in the weeks after Blakely (basics here).  In the immortal words of Yogi Berra, it's deja vu all over again.

January 21, 2005 at 06:04 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The 11th Circuit addresses (small) Booker issues!:


Isn't nice to see that you can waive away the rights granted to you by God in the the contsitution simply by cutting a deal with a prosecutor. That sure works well for the DOJ.

Posted by: bbigler | Jan 21, 2005 7:04:41 PM

Once again the 11th Circuit misses the mark. The court acknowledges that the Federal Sentencing Guidelines ("FSG") are post-Booker unconstitution, but fails to acknowledge that the FSG have been unconstitutional since they were first used for sentencing purposes, 1987. Remember that the Guidelines have the "force and effect" of "laws" (like statutes). The appropriate remedy lies in the 1998 Bousley decision (523 U.S. 614). Last, I note that the Anderson incorrectly attempted to use 2244 when the only viable avenues of potential relief were (or are) under 28 USC 2241 or Audita Querela (used with the All Writs Act). Bousely involved the use of a 2241 --ah.

Posted by: CFER | Jan 21, 2005 9:00:51 PM

thanks,for information i am a ex felony
ex felony and seeking information
ion for some of my friends i
left behind. thanks again

Posted by: E;Hamilton | Mar 1, 2005 5:34:31 PM

Greetings, Looking to foward this to the 11th federal circuit court of appeals e-mail. Please facilitate if you can. Have a great day.

For background, I am a law school drop out with aprox. 2,000 hours indepdendent reading in constitutional law.

To the Judges of the 11th Federal circuit court of appeals, and all who may be interested.

 The biblical story of King Solomon’s judgment should lead the hearts and minds of those
who judge in cases like Terri Schiavo.

Most of you will recall the well known story of the two women claiming the same helpless
infant before the king. Two women had lain together with their infants, and in the morning one of the infants was dead.

There were no available DNA tests, no way of establishing the truth. Both women
passionately pled their cause.

Then, in an example of what has for many centuries more than our nation has existed has
been known as the wisdom of Solomon the King decided the matter. He declared that he would
cut the remaining infant in half and give each woman half.

One of the mothers was willing for this to happen, the other mother, who through the ages
has been a model for selfless mother love, cried out “No, give the infant to her so that she might

Michael Schiavo is willing, in fact more than willing to let Terri Schiavo go. In fact he hasbeen living with another woman for 10 years, has two children with her, and would in the case of a divorce from Terri, most likely by a court be expected to continue to support his “wife” Terri.

Her mother, father, sister, and brother want to take her home and care for her at home.

Oh, and what did the King who has been called exceedingly wise decide? He equated the
self-sacrificial love with true motherhood, and gave the infant to the woman who was willing to
sacrifice so that her helpless infant might live.

Which is the most self-sacrificial love? Ordering the denial of food and water to a woman
who breaths on her own, who’s heart and other bodily organs function without assistance, who
needs care similar to an infant. Thus freeing himself from the responsibility permanently. Or
family that is willing to commit to personally care for her in their own home at their own expensethat she may live?

Oh, yes, . . . Terri wouldn’t want to live this way. After all, her husband, his brother, andhis sister asserted she said so at 21. Something they seemed to remember some seven or eightyears after she became medically dependent, after a large malpractice award had been won to payfor her lifetime care, after he was “engaged” to another woman. Hmm m m m.

Brain damage no matter what the degree is a disability. As such the disabled person should be covered by the Disabled Americans Act. Food and water are essential to life. The ability to swallow is NOT.

This idea of the unliveable life. Think about it. When it gets down to it the drive for life is awesomely intense. People throughout history have endured the unendureable, torture, deprivation, the absence of any hope, and have fought to their last breath to LIVE. Terri Schiavo was not prior to the order allowing her "husband" to order her feeding tube removed. Life fights. Life endures. The denial of food and water to infants, to the elderly, to the disabled is monstrous. None of us has the right to decide whether a life of another is worth living or whether a person is worthy of life. Mechanical means of making organs function such as heart pumps well, we say that is extrordinary, what about the pace maker, dialysis, supplimental oxygen, medications?

Do we decend down to the level of where any disease, any infirmity, any injury that is inconvenient or expensive for those who cannot speak for themselves is allowed to run it's course to a "natural death?" How "Darwinian" of us.

Yet it's been in the local, (Sonoma County California) that it because of endangered species act our area will need to spend in excess of 400 million dollars to support the "endangered" tiger salamander. It is said that tiger salamander is going to add about $25,000. to the cost of every new home in our area. What a shame that Terri Schiavo is only an inconvenient brain damaged wife, not an endangered salamander.

Posted by: Susan W. Kielpinski | Mar 22, 2005 10:14:38 PM

Re: Immigration Policy

Recently, on a talk show Claudia Spencer, a legal Mexican immigrant against illegal immigration stated: “They (the May 1st Immigrant Protesters,) are not even capable to say ‘You know what, years I violated the law. I am sorry. What can I do to fix it?’ Know, they are saying, ‘I violated the law, and I’m going to keep doing it, and doing it, and doing it, until you give me what you, what I want.’ And Americans are not going to take it anymore. I propose an answer. The answer is NOT an army of protesters. It is NOT a boycott. It may be up to 1,000 hours of unpaid community and/or public service, coupled with a fine equal to the price of a coyote’s services, plus other requirements AND an admission that yes, The United States is entitled to protect it’s borders, is entitled to make the laws that determine who may come here, who may live here, who may work here, and as Claudia said, an admission that ‘You know what, years I violated the law. I am sorry. What can I do to fix it?’

Our nation has many problems. Far more than we have
the money to solve. Illegal immigrants who volunteer for instance, up to 1,000 hours (or more)over a period of several years (say 250 hours a year for a period of 4 years) to serve UNPAID the needs of others could become:


IF such service were required for the violation of our immigration laws, and applied also to employers who have knowingly hired illegal aliens as well, it could allow a way for those who have violated our laws to see
their slate wiped clean. They could, with their labor, invest their way into this nation. Such a program could be largely self-enforcing, as the violator would be responsible for locating and arranging service hours
with acceptable organizations, obtaining the documentation of their hours, and providing this documentation to the probationary authority.
No amnesty. Yes, pubic and/or community service. A side benefit, is drug dealers, human and other traffickers, gang members, and terrorists, are unlikely to be willing to muck up after natural disasters, clean up urban blight, deliver meals to the elderly, coach soccer, etc.. So I guess, they can just:



Susan W. Kielpinski

Posted by: Susan W. Kielpinski | May 10, 2006 2:52:36 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB