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June 9, 2005

Move along, little appeal (aka quantity and speed kills effective appellate review)

Can you hear that whooshing sound?  It's the sound of appeals rushing through the Booker pipeline.  Already this morning the Sixth Circuit's opinion page has a half-dozen dispositions with sentencing issues, and the busy beavers at the Eighth Circuit have on this official opinion page another half-dozen dispositions as well.  And though the Ninth Circuit has a lot of catching up to do, an on-line hunt reveals that, aided by its Ameline limited remand approach, the Ninth has already been able this week to punt more than a dozen cases back to the district courts.

Needless to say, because there are so many cases, I cannot keep up with all the action.  When I do find time to check out some of these decisions, I am frequently discouraged by the analysis (or lack thereof) that I see.  For example, the Sixth Circuit today in US v. Williams, No. 04-6191 (6th Cir. June 9, 2005) (available here), resolved a case which raised important post-Booker ex post facto issues.  But, as one lawyer noted in an e-mail to me, the "court's decision on the issue was both anti-climatic and a classic application of ipse dixit resolution.... The court gives no explanation for its ruling, and in fact does not even mention the term 'ex post facto.'  [Williams] decides a significant and thorny question arising from Booker without any explanation except that it the 'most appropriate thing to do.'"

Even more disconcerting is a little unpublished ruling on reasonableness coming today from the Eighth Circuit today.  Though the decision in US v. Verdinez-Garcia, No. 04-3180 (8th Cir. June 9, 2005) (available here) provides precious little background, the court's disposition seems tantamount to a conclusion that a guidelines sentence, even without an accompanying explanation, is per se reasonable:

We conclude that the district court did not abuse its discretion by imposing an unreasonable sentence.  There is no dispute that the court correctly determined the Guidelines sentencing range, and although the court said little about the sentence it imposed, there is no indication in the record that the court failed to consider the circumstances of Verdinez's reentry [to see his terminally ill father] — which he brought to the court's attention in the presentence report and at sentencing — when it sentenced him within the Guidelines range.

Ultimately, I do not think it is fair to pick on these Sixth and Eighth Circuit dispositions alone.  My sense is that every circuit was overburdened with the number of criminal appeals it had to resolve even before Blakely and Booker came along, and I suspect the added workload brought by these cases feels overwhelming.  The sheer quantity of appeals — as well as a need for speed, since some sentencing challenges could be moot if a decision is slow to come — makes it all but inevitable that the quality of justice will be strained.  (Consider also how these dynamics make unsuprising every circuit's endorsement of appeal waivers and the fequent application of "plain error" shortcuts, either through rapid remands or strong presumptions.)

June 9, 2005 at 12:09 PM | Permalink


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Does this mean that, in every case that a lawyer has told a client to plead guilty to a crime for a plea agreement and the judge renigs on the plea agreement, the client has a right to an appeal?

an inmate's wife

Posted by: Carolene Forbes | Jul 18, 2005 1:57:58 PM

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