« Reports on Hill lethal injection argument | Main | The Booker horror picture show »

April 26, 2006

Thoughtful commentary on Salinas summary reversal

As detailed here and here, Orin Kerr has been doing some commentary — dare I say scholarship — about the Supreme Court's intriguing one-page per curiam summary reversal on Monday in the guidelines sentencing case of Salinas v. United States (noted here).  In the same vein, Peter Goldberger, experienced criminal/appellate practitioner, sent me this thoughtful and extended note about what to make of Salinas:

The per curiam reversal of the 5th Cir in Salinas v US, 547 US -- (No. 05-8400) is illuminating for many reasons.  Salinas was sentenced as a career offender based on two prior robberies.  On appeal the FPD for SDTex argued that the 2 robberies were "related" and so didn't count separately under the career offender guideline. Because this argument had not been made in the district court, the appellant had to show plain error. 

The court of appeals held there was no violation of his substantial rights in any event because he also had a prior drug felony conviction.  The government never made this argument at sentencing or on appeal, and the appellant therefore hadn't addressed it.  The sentencing judge hadn't mentioned it either. (The Fifth Cir went on to make two additional interesting rulings: (1) that there was no plain Booker error, even though the judge expressly said he didn't want to send this defendant to prison, where in any number of other Circuits that would meet the defendant's burden to show plain error; and (2) that a special condition of supervised release that the defendant abstain from all addictive substances was invalid, because it was unreasonable to bar him from smoking cigarettes or drinking coffee during supervision (!).) 142 Fed.Appx. 830 (Aug. 8, 2005).

Salinas petitioned for rehearing, pointing out that his prior drug felony was a simple possession, with no intent to distribute, and therefore didn't fit the definition of a prior "drug trafficking" offense for career offender purposes.  Although he was clearly right, and the court of appeals reaching out with a "bright idea" of its own that was just flat wrong was patently unfair, rehearing was denied. 

Salinas then petitioned for cert on the career offender affirmance, noting that his prior drug felony was for an offense that doesn't count for career offender purposes, as well as raising the circuit split on the standard for plain error under Booker.  In response, the Solicitor General conceded the guideline application error but suggested that cert be denied anyway, relying on the robberies, and saying the plain error split is a short-term problem of diminishing importance.

Notably, the Supreme Court accepted the SG's concession of error but rejected the suggestion that cert be denied, granted the writ and summarily reversed and remanded to the Fifth Cir for further proceedings.  There are several interesting points here.

First, this is what I call a "lightening strikes" decision from the Court -- the kind that encourages me to file a cert petition whenever I think a clear error has been made on appeal in a client's case, even if not evidently "cert-worthy."  You just never know which of the hundreds if not thousands of cases with clear errors the Supreme Court will decide to reach out and fix.  If Salinas, why not my case? Why not yours?  If you don't file a petition, they can't grant your petition. 

And it's noteworthy that the Court took care, in this "little" public defender case from Texas, seemingly involving a drug-abusing robber, to look past the SG's attempt to sweep a small injustice under the rug, and instead to slap down the Fifth Circuit for its unfair and unlawful decision, and send it back to be done right.  (It seems to get more "airplay" when the Court does this to the supposedly "liberal" Ninth Circuit than to the arch-conservative Fifth.)  Shame on the Solicitor General for not recommending a GVR. And shame on the Fifth Circuit for disrespecting the adversary system and thinking they had caught an issue the parties (and lower court) had all missed, and then ruling on that basis without even soliciting the parties' views.

Kudos to the Supreme Court for caring to get it right, yet shame on them, too, for continuing to allow the Booker plain error issue to fester.  It's not going away; there are plenty of cases where defense counsel continue to fail to make appropriate objections to "presumptions of reasonableness" and the like, and continue to focus on the guidelines instead of the other 3553(a) factors, asking instead for a "departure," thereby undermining their clients' chances on appeal. Congrats are due to appellate AFPD's Tim Crooks and Phil Gallagher for fighting for their client to the end.

April 26, 2006 at 07:38 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Thoughtful commentary on Salinas summary reversal:


Incorrect sentences should be addressed at the SC. Where else can one get Justice if there is no justice in the lower courts. If all the small errors are by passed because of no precedential value, injustice will continue contributing to over 2 million people incarcerated. Unnecessary burden is placed on the SC when infact these errors should and can be corrected in the appellate courts. Maybe the SC can then concentrate on precedential issues if not for all the unnecessary certs to correct unconstitutional sentences.

Posted by: Welch | Apr 26, 2006 8:50:37 PM

Kudos, indeed, to the Court and to the FPDs. But we all know how rare this is. So many "small" injustices (small only because the person at issue is not valued by society) are done by the Circuits and swept under the rug everyday (the "unpublished summary order" rug), and very few of these are ever rectified.

Posted by: ycl | Apr 27, 2006 8:55:21 AM

As is usually the case, I agree wholeheartedly with everything Peter has to say. I do have to make a factual correction though. The Salinas victory is entirely due to the hard work of my colleague, AFPD Phil Gallagher, and he should get all the credit. My role was limited to cheering him on from the sidelines.

Posted by: Tim Crooks | Apr 27, 2006 11:34:12 AM


Perhaps you're wrong to read this as a slap to the panel, or even to a cocksure law clerk. Often, neither Judge nor clerk spends much time on a PC unpublished opinion. Couldn't this really about the dangers of farming out work to staff attorneys?

As a side note, Chief Judge Jones has defended the use of staff attorneys in "easy" cases like this. 33 Tex. Tech L. Rev. 529

Posted by: David | Apr 27, 2006 4:25:03 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB