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April 26, 2005

Split decision for defendants at SCOTUS today (and Blakely-Booker footnotes)

As SCOTUSblog details here, criminal defendants won one and lost one in the two Supreme Court decisions handed down today.  The victory for the defendant came in Small v. US, where the Court held 5-3, with Justice Breyer writing for the majority, that the statute prohibiting a convicted person from possessing a firearm "encompasses only domestic, not foreign, convictions."   Though Justice Breyer's ruling suggests only about a dozen convictions a year under the statute are based on foreign convictions, this ruling might have broader sentencing significance in a broader debate over how foreign convictions ought to be incorporated into criminal history determinations.  [UPDATE: The AP here provides an early account of Small.]

The victory for the government came in Pasquantino v. US, where the Court held 5-4, with Justice Thomas writing for the majority, that a plot to defraud a foreign government of tax revenue violates the US federal wire fraud law.  Though I suspect Tax Prof Blog and White Collar Crime Prof Blog might have more to say about the merits of this case, I will just quickly note (1) that Justice Stevens joined the majority to uphold the defendants' conviction while Justice Scalia dissented, and (2) the case includes some Blakely/Booker "pipeline" discussion in the footnotes, which merits a separate post (that is now here).

April 26, 2005 at 10:33 AM | Permalink


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If the Supreme Court is willing to spend its valuable time deciding a criminal law issue that has arisen less than 12 times in 37 years (Small v. United Sates), why shouldn't the three-way split among the circuits regarding plain error review of Booker claims deserve the Court's attention? Who would doubt that, in 2005 alone, more than 12 cases will be denied plain error relief in the 11th Circuit based on facts that would probably have won resentencing in the 7th or 4th circuits?

Posted by: David in Soulard | Apr 26, 2005 1:19:19 PM

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