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August 25, 2005

Feeney, Ex Post Facto and Booker, oh my

The Eleventh Circuit today handed down an interesting and complicated opinion in a case that has been yo-yoing between the district and circuit courts since an original sentencing in November 1998.  The chief issue in US v. Bordon, No. 04-10654 (11th Cir. Aug. 25, 2005) (available here), concerns the application of the provisions of the Feeney Amendment and Ex Post Facto doctrine.  Mike at Crime and Federalism sets out the basics in this post.

Though the facts and holding of Bordon are alone enough to make me say "oh my," it is a concurrence by Judge Hill that has me thinking about the Wizard of Oz.  Lamenting the 11th Circuit's refusal to consider Booker claims not raised in an initial brief (even if that brief was filed before Booker was decided), Judge Hill removes the curtain hiding the injustice of the circuit's approach to Booker claims:

This is the third appearance of this case in this court. All three appeals have tested the legality of the Bordon's sentences. This third appeal follows two prior vacations and remands. Today we affirm that the Bordon's sentences were lawfully imposed.

Yet, ironically, after the third appeal was filed in this court, the Supreme Court held that sentences such as these were unlawful. United States v. Booker, 125 S. Ct. 738, 764 (2005). In supplemental authority and at oral argument, the Bordons offered Booker as support that they were unlawfully sentenced.

Based upon the doctrine of stare decisis, I am convinced that our court is correct in holding that the Bordons cannot now bring Booker to our attention. The Bordons should have claimed relief under Booker — before Booker was decided!

For this precedent I am sorry. I confess that this feeling has long and deep roots. See McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1498-1501 (11th Cir. 1990) (Hill, J., dissenting).  In McGinnis, I probably said all that I needed to say on this subject. I won't repeat it here. Id.

I should like to think that a court would want to correct an erroneous sentence of incarceration — if an efficient and prudential method could be devised to do so.  We must feel that we cannot. Y et, the other circuits in this country seem to be doing so — and surviving!

We hold steadfastly to our precedent.  That is worthwhile conduct and procedure. Stare decisis is an important doctrine.  But I trust that, from time to time, it might be tempered with fiat justitia ruat coelum. [Footnote: Let justice be done though the heavens will fall.]

August 25, 2005 at 06:10 PM | Permalink


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