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February 20, 2007

Transcript for Claiborne Arguments

[Posted by Ron Wright]

The transcripts for the oral arguments in Claiborne are now available here.  Now's the time to dive in, rummage among the rich arguments, and bring back to the comments section what you've found. Jump in there with Bermanesque enthusiasm! 

February 20, 2007 at 05:12 PM | Permalink


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Mr. Dwyer is my hero. Excellent argument. Excellent points. I could not have asked for a better presentation in this case.

I was worried about Justice Breyer on this one, but his questions seemed highly skeptical of the government's arguments (I thought his question about the problems with "proportionality" was Scalia's -- I thought there was a typo by the court reporter, but it actually was Breyer.) And that fact about the appeals court "assuming" that Claiborne engaged in unlawful activity for six months -- a fact not in the record or found by a trier of fact! Delicious. That's the appellate factfinding that Justice Scalia hinted at in the argument in Rita; it couldn't have worked out better at the argument.

Justice Ginsburg, with the first question and her subsequent questioning, really wanted to answer the question, "What will work." That attitude alone makes me very hopeful.

I'm worried about Alito and Roberts, but if Breyer rejects the "proportionality" requirement, then there's a good likelihood that the Guidelines will be advisory in more than name-only.

My prediction: presumption of reasonableness of within-Guidelines sentences in Rita; no "proportionality review" and a pretty deferential standard for reasonableness review in Claiborne.


Posted by: Mark | Feb 20, 2007 5:47:12 PM

What's with Breyer saying district judges now have the power to say a sentencing guideline is unreasonable and as such not follow it? That's news to me. Scalia pointed out later that's not the way it works or even necessary for the calculus. But Breyer said it in both Rita and Claiborne. I've never heard of a district judge saying "I find section 3E1.1 unreasonable and as such won't apply it." Isnt that flatly contrary to having to consider the guidelines? Considering them and then with other factors considered in addition, coming to a non-guidelines result is fine.

Posted by: Bruce | Feb 20, 2007 5:51:32 PM

My prediction: Both Rita and Cliaborne will be dismissed as improvidently granted. They'll be too scared to change anything (which seems to be working okay).

Posted by: Bruce | Feb 20, 2007 5:53:14 PM

I think Bruce's prediction has a chance of being right. The problem is that the issues in Rita and Claiborne are far too narrow to address thed deeper issues underlying reasonableness review. Without addressing those deeper issues, it is impossible to decide the cases intelligently and a decision would promote further doctrinal tensions -- sort of like trying to build a house without a foundation. Initially, I thought the Court might reach out and decide those deeper issues, but the oral arguments didn't play out that way in my mind -- and this is precisely why they are "frustrating" (to use Doug's word).

What are the deeper questions? I see two: (1) Whether the Booker remedial opinion should be overruled; and (2) if not, whether, a district court can ever "justify" a sentencing decision by citing to "aggravating facts" about the offender or the crime that were not found by the jury.

Posted by: Aaron Katz | Feb 20, 2007 6:08:13 PM

Nothing in this transcript alters my view that we don't need two different standards of review. As sentences "deviate from the mean," they are more likely to be reversed under the unified standard of review. The more the judge deviates from the maen, the more case-specific his stated reasons should be. This is as consistent with Congressional intent "as [the opinion]can be."
Michael McMahon
Ventura, California

Posted by: Michael McMahon | Feb 20, 2007 6:33:45 PM

Well, some reader of my piece posted a few days ago didn't care for the Lewis Carroll quote with which it begins. But if the Claiborne argument proves only one point, it is that the Court has created a logically insoluble mess that would do credit to the wierdest corners of Wonderland. I will watch their efforts to extricate themselves with considerable interest.

Posted by: Frank Bowman | Feb 20, 2007 7:44:56 PM

After lookint at the transcripts again, I'm even more sure they will DIG both cases, and ya know what, I kinda sorta hope they do. The only person I trust to get the right answer here is Scalia, and that's nervewracking in and of itself.

Posted by: Bruce | Feb 21, 2007 10:20:08 AM

As a prosecutor, I admit I miss the good old days of binding guidelines and I think Apprendi and Blakely are mistakes that started us down this road. That said, they and the odd Booker remedial opinion are the law of the land.

Now, if binding guidelines are unconstitutional, how can the semi-binding/presumption-supporting guidelines of a number of circuit pass constitutional muster?

For me, I would just take Blakely to its logical end and pronounce the guidelines binding, provided they are found by a unanimous jury or (98 out of 100 times) two agreeable parties or by a judge with the parties' consent. At least then I would have a firm number.

The whole 6th Amendment jury right to these issues is form over substance. Does anyone think judges typically find facts by a preponderence they wouldn't find beyond a reasonable doubt? During the Blakely/Booker interregnum, we had sentencing juries find enhancements all the time...

It's too bad we are enduing such a long period of uncertainly and the waste of so much time and ink over such a formalistic doctrine.

Posted by: Tom | Feb 21, 2007 4:14:47 PM

Tom: a lot of sentencing facts are blatant and easily proved beyond a reasonable doubt, but a lot are extremely speculative. I'd have no problem with, and in fact, I would prefer, to submit all sentencing issues to the jury to be found BARD. A judge using acquitted conduct, or "finding" someone committed a different, uncharged crime by a preponderance of the evidence are particularly offensive, both allowed under the present system. The government is fighting jury sentencing fact determinations b/c it knows it will lose out.

Posted by: Bruce | Feb 21, 2007 5:42:10 PM

Professor Bowman: I just wanted to point out that I read your article the day before I read the Rita and Claiborne oral argument transcripts, and that it did an excellent job of putting me in the right mindset to analyze the real problems the Court is now grappling with.

Posted by: Booker fan | Feb 22, 2007 3:19:52 PM

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