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February 23, 2005

Will SCOTUS care to clean up the plain error mess?

With the Chief Justice ailing and the Supreme Court plenty busy with other big ticket cases, I doubt the Court is eager to take on another guideline sentencing case.  Nevertheless, as documented in my circuit-by-circuit review here, the plain error issue is big mess in the circuits, and today's Second Circuit decision in Williams (basics here) suggests a three-way split on this issue is here to stay. 

Given especially the goal of sentencing uniformity, which the Booker remedial majority was purportedly seeking to serve, an awfully strong case can be made that SCOTUS needs to again step in quickly to clean up these remedy issues.  Indeed, given that the government wants to take Ameline en banc in the Ninth Circuit (and indicated in its Ninth Circuit brief that it might seek to go en banc in the Fourth and Sixth Circuits, too), the Supreme Court ought to consider jumping in simply to prevent an enormous waste of litigant and judicial resources dickering over these issues.

The Supreme Court now has at least one ready vehicle for taking up these issues, because defense counsel for Vladimir Rodriguez, the defendant who got the short end of the Eleventh Circuit's plain error stick, have now filed for cert.  The Rodriguez petition, which can be downloaded below, nicely summarizes where matters stand:

Barely one month after [Booker], the Circuits have fallen into a sharp threeway conflict ....  The Third, Fourth, Sixth, and Ninth Circuits have followed a rule under which a sentence longer than the maximum Guidelines sentence justified by the facts found by the jury or admitted by the defendant almost always constitutes plain error requiring resentencing.  The First and Eleventh Circuits have adopted a rule under which such sentences almost never constitute plain error.  And the Second Circuit has adopted a third approach: remanding in every case to ask the district court to make the plain error determination.  This conflict affects a massive number of cases, and concerns an important issue that is squarely and cleanly presented here.

Download rodriguez_cert_petition.pdf

February 23, 2005 at 10:20 PM | Permalink


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FYI, USG filed for rehearing en banch on Hughes on Feb 18.

Posted by: anonclerk | Feb 24, 2005 11:53:09 AM

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