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May 11, 2006

Time to take some more Blakely and Booker cases....

This post at SCOTUSblog notes that the Supreme Court has granted cert in relatively few cases for its next Term.  According to the latest statistics:

As of May 10, the Court had agreed to hear only 13 cases next Term (because of multiples in two grants, that will result in only 11 hours of argument).  At this time last Term, the Court had agreed to hear 22 cases (21 hours of argument) for the following Term, and, in the Term before that, 25 cases in advance grants (21 hours).

Of course, as regular readers know, my solution would be for the Court to take up the many post-Blakely and post-Booker questions that I think merit SCOTUS attention.  (Also, because I am tired of kvetching again and again about the Court's reviewing so many death penalty cases, I hope capital cases won't be used to fill the void.)

Tellingly, this abridged list of key post-Blakely and post-Booker issues I developed last May remains timely.  In addition, now that lower courts have had over 16-months to wrestle with 3553(a) and reasonableness review (and also since Congress is not about to pass a Booker fix), the Court should begin addressing key Booker-remedy questions — e.g., what weight should advisory guidelines now have?  Are departures obsolete after Booker?  Is a presumption of reasonableness for within-guideline sentences suspect or sound?   Readers are, of course, highly encouraged to use the comments to recommend other cert. worthy topics.

On a related front, last year I blogged here and here about the possibility that Chief Justice Roberts' greatest impact could be through efforts to expand the Supreme Court's caseload and to reform the operation of the cert pool.  This latest news suggests that, at least with respect to caseload, the Roberts Court is not bucking recent trends that have dramatically reduced the Court's docket.

UPDATE:  In response to my inquiry, Lyle Denniston has confirmed for me that most of the cert grants so far involve criminal cases.  He says that, of "the 11 hours granted, seven are criminal cases, and maybe eight if you count the partial birth abortion as criminal."

May 11, 2006 at 06:04 PM | Permalink


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I'm arguing in 3rd Circuit on Tuesday, the application of notice requirement of Rule 32(h) post-Booker. Might the Court be interested in resolving the interplay between those rules designed for some level of due process protections (Rule 32's provisions) under the mandatory guidlines regime in a non-guidliens era ?

Posted by: David B. Chontos | May 11, 2006 8:39:58 PM

Another potential issue on which a circuit split is developing is some circuits' (in my view inexplicable) insistence on applying some sort of plain-error review when a defendant fails to lodge a formal objection to the district court's misapplication of the 3553(a) factors. The division on this issue is best captured in the Tenth Circuit's recent decision in U.S v. Lopez-Flores (link here: http://www.kscourts.org/CA10/cases/2006/04/05-2274.htm). As the court acknowledges, its decision diverges from that of the Seventh Circuit in U.S. v. Castro-Juarez, one of less than a handful of cases (documented by Prof. Berman) in which a circuit court has vacated an above-Guidelines sentence as unreasonable.

I can't provide citations, but I believe that certain panels of other circuits (the Sixth?) have adopted a similar approach to the Tenth in unpublished dispositions. This approach, as I said above, strikes me as irreconciliable with the clear language of the otherwise convoluted remedial opinion in Booker.

Posted by: LT | May 12, 2006 12:12:38 AM

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