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February 13, 2006

Ninth Circuit orders briefing on post-Booker jurisdiction

The Ninth Circuit today has issued this notable order in US v. Plouffe:

The parties are directed to file supplemental letter briefs addressing whether the court has jurisdiction to review the reasonableness of Appellant's sentence, which is within the Guidelines range, in light of United States v. Booker, 543 U.S. 220 (2005); our pre-Booker precedent such as United States v. Reed, 914 F.2d 1288 (9th Cir. 1990), and United States v. Pelayo-Bautista, 907 F.2d 99 (9th Cir. 1990); and the holding of Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).

This order raises so many questions: e.g., why did it take 13 months for the Ninth Circuit to spot this issue and hasn't it come up before and been briefed thoroughly in other cases?  Of course, the key question is whether this panel might believe it lacks jurisdiction to review a within-guideline sentence after Booker.

As noted in prior posts, the Seventh and Eighth and Eleventh Circuits (and maybe others?) have all expressly rejected the government's claim that an appellate court lacks jurisdiction to review a within-guideline sentence for reasonableness after Booker.  In addition, many (all?) other circuits have implicitly addressed this issue be exercising jurisdiction to review such sentences. 

Critically, though, as explained here, while the government has been losing the jurisdictional battle, it keeps winning the reasonableness war: in the 13 months since Booker, we still have not seen one single circuit court decision reversing a correctly-calculated, within-guideline sentence as unreasonable.  Unless and until the circuit courts put teeth into reasonableness review, defendants are just claiming Pyrrhic victories when prevailing on the jurisdictional issue.

February 13, 2006 at 01:36 PM | Permalink


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Dear Douglas, I am afraid what was feared after Booker has become the reality, there advisory guideline are de facto mandatory because any sentence that falls within them is left untouched by the appellate courts. The Courts of Appeals have totally avoid any responsibility to distinguish a 3553(a) sentence from a guideline sentence. Even though there is a two tier approach to a sentence now, there is no meaningful review of any kind, just a rubber stamp of an in guideline sentence. It is shameful.

Posted by: Ronald Richards | Feb 13, 2006 1:43:56 PM

I apologize for being repetitive, but practitioners (and district judges!) need not give up the fight. Rather than worrying overly much over the standard of review for within-Guidelines sentences, a real battle that needs to be fought is the standard of review for below-Guidelines sentences. (As D.B. keeps pointing out, the crack/powder disparity is a great wedge to keep this fight alive.) If district judges are allowed to sentence BELOW the Guidelines, without having their hands tied by the Courts of Appeals, then Booker will really mean something.

The quest for "unreasonable" Guidelines sentences is misguided, at least until deference for below-Guidelines sentences is established.


Posted by: Mark | Feb 14, 2006 12:18:35 PM

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