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January 18, 2007

Another day full of Booker circuit fireworks

As if Tuesday's action was not exciting enough, Wednesday brought another collection of noteworthy circuit opinions addressing a range of Booker issues.  And though the Eighth Circuit had a couple of notable remands (available here and here), the most interesting rulings came from neighboring circuits.  Here's a quick run-down:

Seventh Circuit: US v. Roberson, No. 06-1121 (7th Cir. Jan 17, 2007) (available here) (reversing as unreasonable a reduced guideline sentence because of concerns of the impact of 924(c) mandatory enhancement) (discussed by How Appealing here)

Ninth Circuit: US v. Pike, No. 05-30528 (9th Cir. Jan 17, 2007) (available here) (reversing sentence because judge applied clear-and-convincing proof standard when deciding not to apply guideline enhancement)

Tenth Circuit: US v. Atencio, No. 06-1333 (10th Cir. Jan 17, 2007) (available here) (reversing for lack of notice and as unreasonable an upward variance over the dissent of judges eager to hear the case en banc) (discussed by How Appealing here)

Though a lot could be said about all of these opinions, I find the Ninth Circuit's work in Pike to be the most disappointing.  Pike is written by Judge Reinhardt, who is rightly (in)famous for not letting doctrines he sees as questionable get in the way of achieving what he believes to be a just result.  Pike presented an interesting issue in a useful setting for breaking new ground in the name of procedural justice after Booker.  Yet Judge Reinhardt delivers an opinion that, while entirely ignoring Booker, fully embraces a civil standard of proof for guideline enhancements and does not ever mention that Booker changed the standards for appellate review of federal sentencing decisions.

January 18, 2007 at 06:47 AM | Permalink


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The Tenth Cir. officially joins in the Circuit split over whether Rule 32(h) applies to variances, holding that it does. This makes a 5-4 split (5 yes, 4 no). See Atencio, slip op at 10. The Cir. also overrules its past precedent and holds that an objection at sentencing is needed to preserve 32(h) error, or else the error is subject to plain error review.

Judge Murphy's dissent is a must-read for those who think the Circuits are "hostile" to advisory guidelines and district court discretion. (Although, I don't think the notice requirement hinders discretion as much as other hurdles the appellate courts have imposed).

Posted by: DEJ | Jan 18, 2007 1:00:42 PM

Is Posner's decision consistent with the district court's decision in Utah granting one day in jail for selling drugs to the guy who possessed a weapon at marijuana sales, since he had a mandatory minimum of 55 years on the weapons' charges?

Posted by: Ploni | Jan 18, 2007 2:25:54 PM

Douglas: You continue to do a great job. Read your excellent brief in Rita and Claiborne. I am the oldest trial judge whom you met in Philadelphia last August. Chuck

Posted by: Charles R. Alexander | Jan 19, 2007 8:12:21 AM

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