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March 3, 2007

The Sixth's sense on Booker issues and a notable revelation

I have previously praised the Sixth Circuit for its continuous and typically thoughtful efforts to make sense of the post-Booker world.  And the Sixth's continued good sense about post-Booker realities is amply on display in their latest federal sentencing opus, US v. Husein, No. 05-2548 (6th Cir. Mar. 2, 2007) (available here).

Any and everyone closely following the post-Booker federal sentencing world — and especially my 1L students now working on these issues — should take the time to read the Sixth Circuit's extended analysis in Husein.  There are important holdings and noteworthy dicta throughout the Husein opinion.  And the penultimate substantive paragraph also has this interesting discussion of the pending SCOTUS reasonableness work (background here):

We pause briefly to comment on the status of this case in light of the Supreme Court's pending decision in United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551 (2006), which will address, among other things, whether proportionality review of outside-the- Guidelines sentences is constitutional in light of Booker.  Although this and numerous other courts have found that holding certain cases in abeyance pending Claiborne's resolution is appropriate, this is not one of those cases. Because we conclude that Husein's sentence survives the comparatively more stringent proportionality review ..., we would necessarily affirm even if Claiborne were to hold that form of review unconstitutional as an additional standard improperly grafted onto basic Booker-reasonableness review.

I have previously speculated that circuit courts might reasonably decide it was wise to be "holding certain cases in abeyance pending Claiborne's resolution," but I think this is the first on-the-record statement that a circuit court is exercising its discretion to delay consideration of some post-Booker appeals.  Moreover, the flat assertion that "numerous other courts" are also holding cases in abeyance suggests to me that there might be some on-going (and inappropriate?) cross-circuit discussion about how to handle post-Booker appeals while Claiborne and Rita are pending.

March 3, 2007 at 03:25 PM | Permalink


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