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December 18, 2005

Big sentencing doings in the Ninth Circuit

While I was hostage to technology on Friday, the Ninth Circuit issued a set of sentencing rulings, one of which is a potential Booker blockbuster.  Folks interested in guideline technicalities will want to check out US v. Hernandez-Hernandez, No. 02-02127 (9th Cir. Dec. 16, 2005) (available here) (addressing counting of prior convictions), and US v. Speelman, No. 04-30067 (9th Cir. Dec. 16, 2005) (available here) (addressing scope of an appeal waiver and double-counting claim).  But everyone following the post-Booker world should take the time to read US v. Menyweather, No. 03-50493 (9th Cir. Dec. 16, 2005) (available here).

The decision in Menyweather suggests that, in the Ninth Circuit, defendants should expect fair weather (and prosecutors should expect stormy weather) on appeals from sentences below the guidelines.  Among other notable aspects of the majority opinion, the Menyweather court says:

Because Booker excised the de novo review of departures previously mandated by 18 U.S.C. ยง 3742(e), 125 S. Ct. at 765, we hold that the appropriate standard for reviewing the district court's determination of its departure authority is abuse of discretion, discretion, see Koon v. United States, 518 U.S. 81, 98-100 (1996), the standard in place before the statutory de novo review was enacted in 2003.

Menyweather shows that the Ninth Circuit views departures as an integral part of post-Booker sentencing (unlike the Seventh Circuit, which has said that "the concept of 'departures' has been rendered obsolete in the post-Booker world").  Menyweather also shows that a district court persistent in defending the grounds for a departure will likely prevail eventually: after having twice remanded for resentencing, the Ninth Circuit this time affirms an eight-level downward departure, based on diminished capacity and family circumstances, which allowed the defendant to avoid any serious prison time.

Writing a strong dissent, which has already garnered attention elsewhere, Judge Kleinfeld complains that the majority is functionally abdicating its post-Booker responsibilities:

The new sentencing regime does not justify this abdication of our duty of review.  The majority's application of review for abuse of discretion equates it with no review....

Now that the guidelines have been reduced from mandatory to advisory status, our review authority may be more rather than less important than it was before, to prevent idiosyncracy from altogether overtaking sentencing consistency.

December 18, 2005 at 09:07 AM | Permalink


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