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April 18, 2005

Circuits back to Booker business

A quick afternoon tour of the federal circuit websites reveals that every circuit that has posted opinions today has at least one ruling addressing Booker or a related sentencing issue.  As detailed in this post, I have given up trying to follow all the circuit Booker action; I will only note rulings that, for whatever reason, catch my eye or that readers suggest are especially noteworthy or interesting.  So far, these circuit court rulings have caught my attention today:

From the Fourth Circuit, the severity of the sentence seems noteworthy in US v. Robinson, No. 04-4388 (4th Cir. Apr. 18, 2005) (available here).  Robinson, a young man with an IQ measured at 70 who was abused as a young child, was convicted at trial of a string of armed robberies committed when he was 16 years old.  The district court sentenced Robinson to 32 years' imprisonment, but the Fourth Circuit was forced to remand for resentencing because it determined that his many convictions under ยง 924(c) required statutory minimum sentences adding up to 182 years.  The Fourth Circuit commented: "While this result may seem manifestly unjust given Robinson's age and well-documented intellectual limitations, it is the result mandated by Congress."  I wonder, especially in light of Roper and Atkins and points I made in this post, if Robinson might on remand challenge his sentence on Eighth Amendment grounds.  Amicus brief anyone?

From the Ninth Circuit, a post-Booker sentence affirmance seems noteworthy in US v. Cortez-Arias, No. 04-10184 (9th Cir. Apr. 18, 2005) (available here), principally because Booker is not really addressed.  In Cortez-Arias, the Ninth Circuit affirms a 16-level sentencing enhancement in an illegal re-entry case based on its conclusion that a prior conviction qualified as a "crime of violence."  In Cortez-Arias, the Ninth Circuit (which is still debating plain error en banc) never examines whether the district court would have, in its discretion, imposed the enhancement under advisory guidelines and it simply asserts in a footnote: "Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court's recent holding in United States v. Booker, 25 S. Ct. 738 (2005). See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n.8 (9th Cir. 2005)."  Besides the fact Booker is mis-cited, I checked Moreno-Hernandez to discover it remanded for "advisory" reconsideration; I am not sure why the same course should not have been followed in Cortez-Arias.  (I suppose it is possible counsel did not ever raise Booker on appeal, but that seems unlikely.)

From the Eleventh Circuit, a post-Booker reversal seems noteworthy in US v. Smith, No. 02-13211 (11th Cir. Apr. 18, 2005) (available here).  In Smith, the district court found that the defendant's non-Hodgkin's lymphoma, which weakened his immune system, justified a 20-level downward departure so that the defendant could be sentenced to time served.  The Eleventh Circuit noted that defendant "has continued to work as a Dade County water and sewer technician ..., and is thereby exposed to countless bacteria on a daily basis [and also] sponsors musical promotional parties attended by hundreds of people, again subjecting himself to the risk of exposure to bacteria, virus and fungus infections."  It thus held, without any express discussion of the 3553(a) factors, that "[r]egardless of whether, in a pre-Booker world, the sentencing guidelines are interpreted as mandatory, or now, in a post-Booker world, they are considered advisory, it was unreasonable and/or clearly erroneous for the district court to depart downwardly as far as it did in this case."

April 18, 2005 at 03:42 PM | Permalink


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Smith is an unpublished case, surprisingly. But because the circuit began making its unpublished cases available today, it is accessible on the court's website. I don't know if Lexis and Westlaw will now report the 11th Circuit's unpublished decisions online.

Posted by: Richard Klugh | Apr 18, 2005 5:38:08 PM

Professor Berman: In reading your comments about the Ninth Circuit opinion in U.S. v. Cortez-Arias, I think that you may be unaware of the Ninth Circuit Order which precludes appellate counsel from citing Booker in either 28(j) letters or supplemental briefs -- as this case was briefed prior to Booker, counsel can only (now) petition for rehearing by citing to Booker.

Art Allen, Fed. Defender's Office, Las Vegas

Posted by: Art Allen | Apr 19, 2005 10:34:00 AM

Art, that helps to explain matters a bit, I suppose, but I still do not completely understand why Moreno-Hernandez gets remanded for "advisory" reconsideration under Booker, while Cortez-Arias does not. I am sure there is a lot about 9th Circuit practice I do not know (or fully understand), but are you suggesting that Booker is to be wholly ignored in the Ninth Circuit in every case that was briefed before Jan 12, 2005?

Posted by: Doug B. | Apr 19, 2005 11:00:46 AM

The apparant conflict is still questionable (I didn't try to check dates of briefs which might explain it); the Ninth Circuit Order of 1-21-05 reads, in its entirety:

"Pending this court's consideration of the applicability of the Supreme Court's decisons in Booker/Fanfan to pending cases, counsel are directed not to file any supplemental materials or motions, including Rule 28(j) letters, unless specifically ordered to do so by this Court. This directive does not apply to petitions for rehearing and petitions for rehearing en banc, which should be timely filed, or to requests for emergency relief."

I have already filed one petition for rehearing citing Booker and expect that this will be the norm, including Moreno. Art Allen

Posted by: Art Allen | Apr 19, 2005 2:11:09 PM

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