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October 1, 2007

Bumming over cert denied

Though I am still looking forward to a big SCOTUS sentencing term, I am definitely bumming that at the top of today's huge list of cert denials is Faulks v. US.  Faulks is the case from the Fourth Circuit concerning the procedures for revoking supervised release in which I helped develop a petition raising Blakely issues (details here and here).

When time permits, I hope to flag some other notable cert denials, though perhaps reads can help by mentioning other denials of sentencing interest in the comments.  Ultimately, the Faulks denial is another reminder that, even with all the sentencing action this term, there are no shortage of additional (Blakely and non-Blakely) issues that I wish the Justices would tackle ASAP.

UPDATE:  In the comments, Peter G. rightly note the notable absence of Rita GVR's.  Here's Peter's reaction to this Rita dog not barking: "I infer that the Court is washing its hands (and modeling to the courts of appeals to wash their collective hands) of 'substantive unreasonableness' challenges to post-Booker Guidelines and below-Guidelines sentences."

Also in the comments is a query about the status of "Jeff Fisher's ACCA/juvenile adjudication case out of Washington."  I believe that case was Sasouvong v. Washington (discussed here), and it also suffered the one-line fate of "cert denied."

October 1, 2007 at 11:50 AM | Permalink


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To me, the big sentencing story among the 1750+ cert denials today is this: There is not a group -- much less a big bunch -- of "GVR"s (granted, vacated, remanded) in light of Rita. Two of my pending petitions, both in cases which had already been re-sentenced in light of Booker, were denied this morning, despite cert petitions arguing that the affirmances of the sentences after remand were not consistent with appellate review as (subsequently) described in Rita. Classic grounds for a GVR. But they were denied. I infer that the Court is washing its hands (and modeling to the courts of appeals to wash their collective hands) of "substantive unreasonableness" challenges to post-Booker Guidelines and below-Guidelines sentences.

Posted by: Peter G | Oct 1, 2007 2:26:22 PM

Peter G, do you think that implies the requirement of some sentence within the guidelines like in California after Cunningham? If so, will that limit the court's ability to sentence above the guidelines including acquitted conduct?

In my small layman mind, this seems to be the simplest solution that would solve all the quandary.

Posted by: George | Oct 1, 2007 3:47:19 PM

Anyone know what happened to Jeff Fisher's ACCA/juvenile adjudication case out of Washington?

Posted by: Fedef | Oct 1, 2007 5:17:59 PM

George: Those arguments are not foreclosed. Here's hoping (and trying).

Posted by: Peter G | Oct 1, 2007 11:17:57 PM

My cert petition was denied arguing that mandatory use of the Guidelines criminal history calculation in the safety valve procedure in 3553(f)(1) created an isalnd of mandatory Guidelines application which conflicts with the central concern in Booker for uniformity. If the Guidelines must be treated as a whole (no internal tinkering) then ALL uses of the Guidelines must be advisory, allowing the judge to deviate from the strict criminal history calculation in the appropriate instance. In my case, prosecutor and judge as well as defense bemoaned the fact that the client did not deserve the 10 year mand. min. for importation, but had no choice. Client missed safety valve because he had 2 points. The judge departed downward to Category I for overrepresentation, but found that it was points alone that counted.

Posted by: James Fife | Oct 11, 2007 10:55:07 AM

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