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June 13, 2006

A Cagey view of Booker

Though the Supreme Court's work dominated the sentencing talk yesterday, I want to make sure a great Booker opinion from late last week gets its due.  As briefly discussed here, the Tenth Circuit in US v. Cage, No. 05-2079 (10th Cir. June 8, 2006) (available here), does some very interesting and thoughtful work on post-Booker sentencing and reasonableness review.  Trying to make sense of the dueling opinions in Booker, the Cage court provides what might be described as a civic republican defense of the opinion. 

Cage is definitely worth a close read (or second read) for all Booker fans.  The same also goes for the Sixth Circuit's recent great work in Buchanan (discussed here and here), and also the Ninth Circuit (apparently controversial) work in Zavala (discussed here).  Now we just need a circuit to issue a great decision in a case that starts with "A" so I can talk about the A, B, C to... Z of post-Booker rulings.

June 13, 2006 at 10:03 AM | Permalink


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I do not see Cage as a ray of sunshine in the drab world of federal sentencing, she plead guilty to the crimes of conspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine and using a telephone to facilitate a drug trafficking offense. She did not go to trial and was sentenced based on “admissions by the defendant” and received every mitigating adjustment possible. The Fanfan error in applying the guidelines as mandatory is an “old saw”, in which remands result in the exact same sentence. The Booker error in enhancing a sentence based on facts not found by a jury or admitted by the defendant in a mandatory fashion is not the issue in Cage. The only glimmer of hope I see in Cage is Booker was applied in a case that was already final and therefore a post conviction correction by retroactive application of Booker, does this stretch the limits of retroactivity too far. This recalling of the mandate may be extended to those case post-Blakely , pre-Booker where alternative sentences were implied rather than explicit or even run the pipeline retroactivity to Apprendi where omniscient judges obliquely disagreed with the mandatory sentencing, but many judges have disagreed with the guidelines since 1987.

Posted by: Barry Ward | Jun 13, 2006 1:45:59 PM

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