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November 27, 2006

What's happening during the reasonableness interregnum?

Inspired by a question from a practitioner, I am wondering how federal district and circuit courts around the country are dealing with post-Booker sentencing issues as everyone gears up for the Supreme Court's work in Claiborne and Rita (lots of background here).  It is fair to assume that SCOTUS took up these cases to disrupt the current status quo of reasonableness review, particularly the circuits' suspect tendency to reverse nearly all below-guideline sentences appealed by the government and to affirm virtually all within-guideline sentences appealed by defendants (ugly patterns noted here).  And yet, the status quo is the prevailing law until the Supreme Court says otherwise.

Claiborne and Rita are not scheduled to be argued until late February, and I doubt we will see a decision from the Court until probably June.  And, in the meantime, tens of thousands of sentences need to be imposed by district courts, and thousands are subject to review in the circuits.  Will resolution of many cases (particularly the hard ones) be slowed down as we anticipate rulings in Claiborne and Rita?  Will there have to be hundreds, perhaps thousands, of resentencings no matter what is said in Claiborne and Rita.

Folks struggling with these issues "on the ground" are highly encouraged to use the comments to report what they are seeing (or what they think should be happening).

November 27, 2006 at 03:37 PM | Permalink


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I'm handling a case that was recently decided in the Sixth Circuit (U.S. v. Davis), and we filed for cert. on 11/13. The Solicitor General's Office replied within a week to the cert. petition, specifically requesting that the Supreme Court hold the case in abeyance until Claiborne and Rita are decided. This was different from past "waive any response" that I've seen from the SG's office. I don't know if this is a new approach in general, or specific to Claiborne/Rita-related cases.

While the case is pending in the Supreme Court, the original trial counsel, Vince Popp, is handling the re-sentencing in the district court, requesting an extension of the re-sentencing hearing until Claiborne is decided. We did not ask for a stay of the mandate pending the cert. process because, no matter how the cert. process works out, there is quite a bit of work that needs to be done at the district-court level (we didn't want that process to be truncated).

I'm curious what others have seen from the SG's office.

Mark P.
Nashville, TN

Posted by: Mark | Nov 27, 2006 5:07:52 PM

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