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March 2, 2007

While the blogger is away... the Sixth Circuit shall say...

a whole lot about a lot of sentencing issues.  As noted before, I am in the Eighth Circuit's backyard, talking about the death penalty in Missouri (more on that later).  But, thanks to How Appealing, I see that my home-town Sixth Circuit released two major rulings today.  Here are the reports courtesy of Howard:

Sixth Circuit decides when a death row inmate's federal civil rights claim challenging Ohio's method of implementing the lethal injection accrued: Today's ruling, by a divided three-judge panel, finds the inmate's claim to be time-barred. The dissenting opinion, by contrast, would have held that "the statute of limitations should not begin to run until an execution becomes imminent."

"[T]he plain import of Booker is that a 1-day, below-the-Guidelines sentence, no less than a 7,300-day, above-the-Guidelines sentence, is now a viable sentence for a district court to impose so long as it is authorized by statute and reasonable within the meaning of 18 U.S.C. sec. 3553(a)." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today, in a decision affirming a one-day prison sentence where the advisory Guidelines range produced a sentence of imprisonment of between 37 and 46 months. You can access today's ruling at this link.

WOW!  I hope to have time tonight to discuss both of these notable developments after I return from my conference.  In the meantime, I hope commentors will share insights.

March 2, 2007 at 01:43 PM | Permalink


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The Sixth Cir. opinion in US v. Husein is significant for a wide variety of reasons. Among them the Circuit holds that after Booker departures are no longer reviewed de novo, but rather under the previous standard of abuse of discretion. With this holding the Court affirms a downward departure for family circumstances. See slip op. at 8 ("If the stricter de novo standard of review were still applicable, we might be more inclined to conclude that Husein had failed to prove her irreplaceability. But under the again-prevailing abuse-of-discretion standard, we hesitate to 'second guess' the determination of the district court.").

Posted by: DEJ | Mar 2, 2007 8:35:59 PM

There's a really big boo-boo in Gilman's dissent. He writes: "Even if Cooey could have brought his civil rights complaint before 2004, which I find dubious, I see no justification for holding that he was required to do so."

That statement totally misapprehends how a statute of limitation works. If Cooey could have brought the action, ipso facto, that meant the limitations clock was ticking. In fairness, Gilman is responding to the majority's policy arguments, but nevertheless, the statement botches the law.

Posted by: federalist | Mar 3, 2007 3:00:31 AM

Unfortunately, my guess is that no one is going to read this comment on a post superceded by so many others. But I can't help but note the absurdity of reviewing a downward departure for abuse of discretion under non-mandatory guidelines. The only possible "abuse of discretion" is sentencing the defendant to an unreasonable sentence, and review for abuse of discretion must either be a duplicative formality or incorrect in applying a new requirement on disctrict courts who must only produce reasonable sentence and are under no obligation whatsoever to follow the guidelines and thus have full discretion to sentence below the range so long as the sentence is reasonable in light of the statutory policies of sentencing. (I guess we'll have to wait for Rita and Claiborne to see if I missed the boat!)

Posted by: Jacob Berlove | Mar 4, 2007 10:56:39 PM

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