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September 10, 2007

Lots of sentencing due process talk from the Third Circuit

The Third Circuit today issued two lengthy sentencing opinions discussing two different aspects of post-Booker sentencing procedures.  Both US v. Ausburn, No. 06-2250 (3d Cir. Sept. 10, 2007) (available here) and US v. Fisher, No. 06-2250 (3d Cir. Sept. 10, 2007) (available here), merit a close read and further discussion, but I won't be able to provide anymore on these notable rulings until after I teach this afternoon.  However, a quick scan suggests that fans of due process won't be too excited about these rulings.

September 10, 2007 at 01:01 PM | Permalink


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How interesting: In U.S. v. Fisher a majority of two judges (Jordan and Hardiman) overrules Kikumura (as superseded by S.Ct. precedent). Why is this interesting? Neither judge participated in the Third Circuit's recent en banc decision in U.S. v. Grier, where that court specifically refused to go as far as the panel had in overruling Kikumura. It is also strange that the majority in Fisher does not address the concurrence of Judge Ambro in Grier, which extensively explained how Kikumura survives recent precedent.

Posted by: | Sep 10, 2007 9:31:08 PM

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