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February 11, 2005

Another circuit split(?) on appeal waivers

The Eleventh Circuit keeps the Booker fun going today with its decision today in US v. Ginard-Henry, No. 04-12677 (11th Cir. Feb. 11, 2005) (available here).  In Ginard-Henry, the Court essentially replays, in a slightly fuller form, its prior post-Booker ruling in Rubbo that refused to consider a Booker claim due to the defendant's appeal waiver.  Explaining that defendant's "Apprendi/Blakely/Booker claim on appeal does not fall within any of the exceptions to his appeal waiver," the Court rules "this appeal was properly dismissed, and Grinard-Henry’s motion for reconsideration is denied."

Since Ginard-Henry does not appear to break new ground for the Eleventh Circuit, I was at first not inclined to do a post on the decision.  But then I recalled have earlier this week, the Eighth Circuit in Killgo (discussed here) concluded that, despite a defendant's appeal waiver blocking consideration of a Booker claim, it should still review the defendant's sentence for reasonableness.  The Eleventh Circuit did not do any such review in Ginard-Henry, so I think we have yet another circuit split in the handling of "pipeline cases."

February 11, 2005 at 05:26 PM | Permalink


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Professor Berman....Regarding the 11th Circuit opinions issued to date,I find it curious that Judge Carnes, the former death penalty prosecutor for the State of Alabama, has been in charge of the opinion-writing. Is this a result of chance or some sign that Judge Carnes is the designated ogre for the 11th Circuit when it comes to Booker cases?

Posted by: mike | Feb 11, 2005 10:36:12 PM

I doubt Judge Carnes has been officially designated to handle all Booker issues, but he may have taken over this task de facto by being the fast pen in the Circuit on these cases.

Posted by: Doug B. | Feb 12, 2005 8:22:26 AM

Excellent commentary!

Posted by: Dr. Paul Luskin | Feb 12, 2005 9:47:43 AM

I am a parent of a prisoner. What is going on with the 7th District cases from Illinois? Many people who were arrested on drugs were in the state cases but Illinois states are overcrowded and they turned them into Federal Cases. These people a poor, small time drug users. What happened to the Christian motto, hate the sin, not the sinner? What happened to love your enemy? (Matt. 5:44)What happened to "Free the captives?" (Luke 4:18) Don't follow man's laws, follow God's law.
(Acts 5:29) I feel sorry for you lawmakers
who are the hypocrites. (Matt. 23:13-39,
Luke 11:46-52) Stop this nonsense now!
Christ already returned through us in
Spirit. The children of the Kingdom know
the tares are the lies that lawmakers,
media and prosecutors plant into the minds
of the gullible people. (Matt. 13:36-43)

Posted by: Sandra Bouchard | Feb 14, 2005 4:54:11 PM

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