Late week interesting rulings from the Circuits

While I was busy with the great Booker conference at the Houston Law Center (discussed here and here), the federal circuit courts issued a couple of decisions that merit mention.

From the Ninth Circuit, US v. Schneider, No. 03-30527 (9th Cir. Nov. 18, 2005) (available here) would have been a simple Ameline remand, except that Judge Ferguson decided to write a separate concurrence to explain why, in his view, "the District Court's refusal to depart under § 5K2.13 [for diminished capacity] rested on two significant errors."  Notably, the majority in Schneider (comprised of Judges Trott and Kleinfeld) drops a footnote to explain that they "respectfully disagree with our able colleague's analysis of the district court's refusal to depart under § 5K2.13 of the Sentencing Guidelines," even though they feel that they did not need to "formally respond to our colleague's analysis given that we all agree that an Ameline remand is necessary."

From the Tenth Circuit, US v. Visinaiz, No. 04-4277 (10th Cir. Nov. 16, 2005) (available here) covers a lot of ground in the course of affirming a conviction and sentence; most notably, Visinaiz affirms Judge Paul Cassell's conclusion last year that Blakely is inapplicable to restitution awards. The Tenth Circuit clarifies its view that "restitution is not criminal punishment" in order to avoid Blakely and Booker concerns.  (Regular readers will recall that, as detailed here, Judge Nancy Gertner came to a different conclusion on this issue earlier this week.)