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September 6, 2005

Sixth Circuit says it still lacks jurisdiction to review failure to depart

The Sixth Circuit today, following the lead of other recent circuit decisions, holds in US v. Puckett, No. 04-5988 (6th Cir. Sept. 6, 2005) (available here), that even after Booker it lacks jurisdiction to review discretionary denials of departures:

In light of our own precedent, and the recent decisions by the other circuits, we hold that ... although the sentence departed from may be reviewed under Booker, we shall not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.

As I stated here in conjunction with a similar recent decision from the First Circuit, I am not certain this "lack of jurisdiction" conclusion can be sensibly squared with the new reasonableness standard of review that Booker creates.  More importantly, it is unclear, and yet critical, what this approach might mean for defendants seeking post-Booker variances.  Are circuits going to eventually conclude that they lack jurisdiction to review sentences in which district courts refused to grant a variance (since all district courts surely now understand that they have discretion to vary from the guidelines in every case after Booker)?

CLARIFICATION:  In this comment, David rightly notes that Puckett is a pipeline case, involving a defendant apparently sentenced before Booker, which should not be read as conclusively settling various post-Booker appellate review issues.  But my broader concern is with prospect of circuit courts suggesting that, even after Booker, that lack jurisdiction to review certain discretionary decisions by sentencing judges if the final sentence ends up within the applicable guideline range.

September 6, 2005 at 11:11 AM | Permalink


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If that case stands for the proposition that a court can't review a sentence, as to which a downward departure was denied, then it's nuts, and in conflict with the remedial portion of Booker. But I don't think it does. Looks like the case came up before Booker, arguing solely that it was an error to deny a downward departure. A request for a remand under Booker was made only in a reply brief, and the sentence was apparently not challenged on the basis of reasonableness. So the court seems to have viewed the Booker claim as not properly raised, and the unreasonableness claim as not raised at all. I gather this from the dissent, however, not the opaque main opinion.

Posted by: David in NY | Sep 6, 2005 12:44:30 PM

It's hard to believe this case could stand for the proposition that raising an issue in a reply brief doesn't preserve the issue while formatting the same argument as a FRAP 28(j) does.

The original brief was filed 11/24/04 (pre-Booker). The reply brief was filed 1/18/05, a few days after Booker (1/12).

Because FRAP 28(j) has a 350 word page limit, a brief would be better. Rather than a reply brief, you could get permission to file a supplemental brief (remember: tan covers). But isn't this distinction rather a formalistic one to preclude consideration.

This is aside from the fundamental question: any sentence can be reviewed for reasonableness unless it's based on a refusal to downwardly depart for 5K?

Posted by: Robert Little | Sep 6, 2005 2:23:46 PM

Two points:

First, in answer to Robert Little, I would say that as a matter of appellate practice, if a lawyer wants to raise something in a reply brief that is more than a response to the government, she should ask permission to do a supplemental brief and put it between those crucial tan covers. It's far better than getting the opinion that says, "We don't consider claims raised for the first time in a reply brief," and having to explain to a judge in a 2255 hearing why you didn't raise it in the first instance. And there is some substantive merit to requiring claims to be raised in the main, or a supplemental, brief --otherwise the government won't have a fair chance to reply.

As to Doug's updated point -- if Courts are going to say they can't review sentences where the district courts decline to go below the guideline range on departure grounds, then I say they're nuts, and they can't read Breyer's remedial opinion in Booker. But I've got a brief to write, so the proof will have to wait.

Posted by: David in NY | Sep 7, 2005 4:28:55 PM

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