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October 29, 2007

SCOTUS order list includes two Rita GVRs

As first noted in comments by Peter G, the Supreme Court returned from its summer break by denying cert in early October to a lot of federal criminal appeals that perhaps could have justified Rita GVRs.  That reality makes somewhat notable that today's Supreme Court order list, which is available here, includes two Rita GVRs in cases captioned Ibarra and Heavner from the Eighth Circuit.

I am not sure why Ibarra and Heavner get the benefit of Rita GVRs when so many other cases did not.  Anyone in the know about these cases or (any Rita-related) others are encouraged to offer enlightenment in the comments.

October 29, 2007 at 11:27 AM | Permalink


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Lingo alert! Sorry, but what is a "GVR"?

Posted by: Dave | Oct 29, 2007 12:33:14 PM

Granted, vacated, remanded - got it.

Posted by: Dave | Oct 29, 2007 12:34:50 PM

The CA8 opinion in Heavner is here:

The final paragraph of the opinion is probably the reason for the GVR... I'm having trouble articulating precisely why I think so, but I'd advise people to look at that.

As for Ibarra, the opinion is here:
The interesting part of that opinion may be footnote 2 on page 4.

The pattern in the cases, I suppose, is:
(1)the defendants challenged the district court's use of a presumption of reasonableness
(2) the defendants noted that the Supreme Court granted cert in Rita, and
(3) the court of appeals declined to address (as opposed to rejected outright) the defendant's argument regarding the proper application of a "presumption of reasonableness," saying that it was bound by prior precedent.

The Court probably GVR'ed because there's a nontrivial possibility that the panel might look at Justice Breyer's statements about what a "presumption of reasonableness" may be, and may not be, and might come out differently on remand.

Obviously, this isn't a complete answer to the "why only two" question, but it might be a start.

Also, I note that both Heavner and Ibarra got within-Guidelines sentences at the low end of the range.

Posted by: | Oct 29, 2007 1:35:35 PM

Dave's fact analysis fits the pattern in my case, which is still pending. I filed cert & said the 11th Cir. should have waited for Rita (like I'd requested). The S.Ct. asked for a response by the Solicitor General. He said it should be remanded in light of Rita. The case was distributed for conference on 10/26. Now the docket says distributed for conference on 11/2. Does anyone know if they just didn't get to it, or does that mean anything?

Posted by: Lynn Fant | Oct 30, 2007 10:46:44 AM

I note that retired Justice O'Connor was on the 8th Circuit panel that decided Heavner.

Posted by: Booker fan | Oct 30, 2007 11:16:03 AM

L. Fant, "distributed for conference on 11/2" means that on November 2nd (this Friday, I think), the Supreme Court will consider whether to grant cert in your case (and in all of the other cases "distributed for conference" on that day).

On Monday, November 5th, at 10am the Court will issue its order list, and that list will probably have your case on it and say whether they granted or denied cert.

That's the typical pattern anyway. It sometimes happens that the Supreme Court issues orders early (like Friday afternoon), or that the Justices are unable to make up their minds about some cases (in which case they'd "re-list" your case for another conference instead of granting or denying cert next Monday).

I'd look for your case on the 11/5 orders list. scotusblog.com usually reports which cases were granted or denied within minutes of that information becoming public.

Posted by: 1:35:35 | Oct 30, 2007 11:46:01 AM

The 10th Circuit opines on Rita for the first time publicly today.

Posted by: ohwilleke | Oct 30, 2007 12:07:58 PM

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