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January 12, 2007

Some DC Circuit opining on Booker

T01271cctetThe DC Circuit's Booker work today in US v. Henry (aka Money), No. 04-3076 (DC Cir. Jan. 12, 2006) (available here), and especially Judge Brett Kavanaugh's great concurring opinion, has me thinking about one of my favorite movies from the 1990s.  To paraphrase one of my favorite Swingers quotes from the character Trent:  "The DC Circuit and Judge Kavanaugh are so money, and they don't even know it!"

The Booker issue in the Henry case concerns whether the defendants (one of whom is known as Money) are entitled to a Booker resentencing.  Concurring, Judge Kavanaugh writes seven pages to "note a few broader points about the path of post-Booker jurisprudence in the federal courts."  All of Henry, and especially Judge Kavanaugh's concurrence, is today's morning must-read.  I will spotlight two of the many great paragraphs from Judge Kavanaugh's opinion:

To be sure, district and appeals courts now take some additional and important procedural steps (as exemplified again by today's per curiam opinion).  But the bottom line, at least as a descriptive matter, is that the Guidelines determine the final sentence in most cases. And notwithstanding the Booker constitutional opinion, many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.  The oddity of all this is perhaps best highlighted by the fact that courts are still using acquitted conduct to increase sentences beyond what the defendant otherwise could have received — notwithstanding that five Justices in the Booker constitutional opinion stated that the Constitution requires that facts used to increase a sentence beyond what the defendant otherwise could have received be proved to a jury beyond a reasonable doubt.

In short, we appear to be back almost where we were pre-Booker.  And if that is so — and if the lower courts' effort to harmonize the competing goals of the Booker opinions has become the jurisprudential equivalent of a dog chasing its tail — it makes sense to examine how current sentencing practices square not just with Booker but with underlying constitutional principles.

As Trent says: "Baby, that was money!  Tell me that wasn't money."

January 12, 2007 at 11:00 AM | Permalink


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