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February 3, 2005

Electric Circuits and Second (Circuit) thoughts

I figured it would not take long before the Circuits started cranking out major Booker opinions, and Wednesday we got important rulings from three Circuits: the Second Circuit addressing a host of topics in Crosby and Fleming (basics here), the Sixth Circuit addressing plain error in Oliver (basics here), and the Seventh Circuit addressing retroactivity in McReynolds (basics here).  And rumor has it that we may be seeing a lot more circuit action in the coming days.

Though all of these recent cases are quite important, the broad and thoughtful work of Judge Newman for the Second Circuit in Crosby and Fleming merits the most attention.  (And, suitably, these decisions have already gotten some attention from the Second Circuit Blog here.)  Because Crosby in particular covers so much ground, my commentary here can only spotlight a few of the most noteworthy aspects of its work by the Second Circuit.

1.  Quasi en banc decision-making.  The Crosby decision comes from a panel, but Judge Newman notes not only that the opinion was "circulated to all the judges" of the Court before filing, but also that "the members of this panel have greatly benefitted from numerous suggestions and comments by other judges of this Court."  Especially in the wake of all the en banc craziness that took place in the 6th and 8th Circuits following Blakely, this approach to collective decision-making is fascinating and seemingly commendable.  It also leads me to wonder whether other Circuits are getting the whole team involved in Booker rulings.

2. Showing enormous respect for district courts.  Judge Newman served on the district court for many years before being elevated to the Second Circuit, and his respect for the workload and work product of district courts comes through in many ways in Crosby and Fleming.  Though Crosby does directly mandate certain post-Booker actions by district courts, both decisions clearly seek to give district courts lots of post-Booker breathing room: e.g., Crosby says that precise calculation of the guideline range won't always be necessary; Crosby stresses the "day-to-day role of district judges in imposing sentences and the episodic role of appellate judges in reviewing sentences;" Crosby provides for remands for reconsideration rather than for resentencing, which would seem to ease the burdens on district courts in some cases; Fleming says that, in review for reasonableness, the "appellate function ... should exhibit restraint, not micromanagement."

3. Enforcing a sentencing process. In Fleming, the Second Circuit suggests that its reasonableness review of the length of sentences will be quite deferential: "Although the brevity or length of a sentence can exceed the bounds of 'reasonableness,' we anticipate encountering such circumstances infrequently."  But in Crosby, the Second Circuit stresses that district courts generally will still have to calculate an applicable guidelines range, consider traditional departure considerations, and state reasons in open court and write up with specificity justifications for a sentence outside the calculated range.  Though the Second Circuit says it will not be requiring "robotic incantations," district courts should realize that a failure to follow the new Booker operating procedures could alone lead to a finding of unreasonableness.

4. Leaving many questions answered.  I count at least 5 notable legal issues spotted but not resolved in the Crosby footnotes, and the main text states that the Court with its remand is expressing "no views on the considerations that might inform an appellate decision as to the reasonableness of the length of a sentence."  Moreover, though the opinion seems to state that district judges would be committing procedural error if they decided to fully Blakely-ize the guidelines and treat them as mandatory — the approach suggested recently by Judge Holmes in Barkley (basics here, commentary here) and perhaps endorsed by Judge Batallion in Huerta-Rodriguez (basics here) — the opinion does not address whether a district judge could choose to apply a  proof standard of beyond a reasonable doubt (or clear and convincing) when finding facts to calculate guideline ranges.

February 3, 2005 at 01:44 AM | Permalink


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