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June 12, 2008

A split decision (and a victory, of sorts) in SCOTUS Irizarry decision

Though the rest of the legal world will be focused on the dentainee decisions from the Supreme Court today, I have different case and a much shorter opinion to obsess about (while watching golf).  As detailed by the SCOTUSblog live blogging:

The Court has released the opinion in Irizarry v. United States (06-7517), on whether a district court must provide a criminal defendant notice of the contemplated grounds for a sentence above the range recommended by the sentencing guidelines.  The ruling below, which found for the government, is affirmed.

Justice Stevens wrote the opinion.  Justice  Breyer dissented, joined by Justices Kennedy, Souter, and Ginsburg.

The full decision (which runs only 18 total pages, including the syllabus) is now available here.

Because I helped with the brief that supported the outcome that was affirmed here, I cannot provide a completely objective assessment of the ruling.  But I can note right away the intriguing combination of Justices on each side of the 5-4 ruling, with Justice Stevens being the unusual swing vote in this case.  Fascinating stuff that confirms my view that the Supreme Court's work in criminal justice case, and especially in sentencing cases, remains joyfully unpredictable.

June 12, 2008 at 10:45 AM | Permalink


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Sounds great if you're in some latte-sipping blue district. Must be fun to stride into court and see every day as a new potential to ambush the govt with a different downward variance. When you're out in the hinterlands, however, watching judges routinely doubling and tripling the Guideline maximums on their own initiative in the mildest illegal re-entry and felon with a gun cases, some notice would be nice. In most cases, I think those judges can be persuaded to exercise some restraint if you put some effort into it -- most of them are probably fair-minded people, they just come from a different starting point. But few practitioners have the resources to do the research and investigation necessary to beat back every conceivable ground for variance before every hearing. The practical disucssion of Justice Marshall in Burns has a lot of resonance, whether the out-of-range is labeled departure or variance.


Posted by: RW | Jun 12, 2008 11:18:26 AM

Congrats to you and Professor Rutledge, and an auspicious start to his Supreme Court practice.

Posted by: NCProsecutor | Jun 12, 2008 11:28:20 AM

Be sure, RW, to encourage everyone to put notice objections on the record and to ask for continuances when need. Even without applying 32(h) broadly, solid counsel and reasonableness review should be able to eliminaate too many broad-sides. And, since downward variances are still 10 times more likely than upward ones, I view this ruling as a BIG net win for defendants (and for sensible district court discretion/decision-making).

Posted by: Doug B. | Jun 12, 2008 12:33:47 PM

I agree. This is a net win for defendants for two reasons:
First, a defendant (or more importantly his/her attorney) feels that the lack of notice truly prejudices him/her, the Court's opinion provides for adequate protections. For example, other Rule 32 protections, see n.2 and accompanying text, and continuances.

Second, the main lesson from the opinion is that the often-harsh Guidelines truly are (and we really, really mean it...) advisory. "[T[here is no longer a limit . . . on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. ยง3553(a)" (slip op. at 6). This, on the whole, benefits defendants.

Posted by: DEJ | Jun 12, 2008 1:08:24 PM

I guess I don't get it, but less adversarial process at sentencing doesn't seem like a victory to me, even if it might redound to defendants' advantage in some cases. This is especially so when the decision rests on a mistaken definition of departure. The oral argument made clear that members of the majority mistakenly believed there were a finite number of "departure" grounds. In fact, departures have always been open ended, as Breyer says in dissent(even though judges didn't take enough advantage of them pre-Booker). Moreover, the Commission has used the departure/variance distinction as part of its three-step frameowrk to redirect attention from the 3553(a) factors to the policy statements of the Guidlines Manual, which almost invariably discourage non-guidelines sentences. Not much of a victory in my book.

Posted by: pjhofer | Jun 12, 2008 10:29:29 PM

"Be sure, RW, to encourage everyone to put notice objections on the record and to ask for continuances when need. Even without applying 32(h) broadly, solid counsel and reasonableness review should be able to eliminate too many broad-sides."

Doug I like and respect the blog, but your simply wrong on this BIG net win and I believe it is based on being somewhat naive. I do not practice in one of those aptly-described "latte-sipping blue districts." Instead I practice in a rocket docket district where they eat defendants alive and use law review articles to clean "solid" counsel's blood off the courtroom walls.

The idea of requesting a continuance to stop the justice train at sentencing is laughable. It would be met with a denied or, "OK I'll give you 5 minutes."

Reasonableness review...are you kidding me?! Substantive reasonableness review is dead in my Circuit, as I think it is with most - unless of course you plot to kill the President and then 30 years isn't enough.

Once the mean judges start getting smart where I am at and realize that all they have to say is:

"This is a close call, but I am denying your objection to the loss amount and so the advisory guideline range is 63-78 months and not the 51-63 months had I sustained the objection. However, in the event I am wrong I am now considering the factors under 3553(a). In particular I am paying attention to the sentence imposed needing to reflect the seriousness of the offense and to afford adequate deterrence to criminal conduct. In light of all of the 3553(a) factors but in particular the 2 I just mentioned I find that a sentence of 78+ months is sufficient, but not greater than necessary to comply with the purposes of 3553(a)."

Following this pronouncement, an attorney writing a brief seeking to challenge the sentence on procedural or substantive reasonableness is merely contributing to destruction of the trees used to make the paper. I think it signals the end of the most sentencing appeals and since 97% of federal criminal cases plead guilty, what is left?

I practice in a place where if you are an illegal immigrant and get hit with a 1326 there is a 50-50 shot the client is getting an upward variance. It sure as heck would have been nice to receive notice to prepare yourself and the client for it. Indeed, that is why both the AUSA's and AFPD's asked for it in the briefs to the Court. Where I am at this is hardly a BIG net win.

Posted by: FPD | Jun 13, 2008 2:36:42 PM

FPD: You obviously are struggling with life after Booker in your district, but I think you complaints are really about the Booker remedy itself and hee I think you are just shooting the Irizarry messenger. (There is a telling irony that pjhofer in your complaints in the wake of those by pjhofer.)

More generally, FPD, you are understandably concern with harsh guidelines combined with harsh judges, but these are problems that go way beyond the specifics of any one case. The Booker remedy surely made life that much more difficult when dealing with harsh judges (but maybe that helps you understand why DOJ get so grumpy about lenient judges and why they wanted a notice requirement to prevent unanticipated leniency). But the best solution in your universe might be a return to mandtory guidelines: would that be an improvement to the current regime in your view?

Posted by: Doug B. | Jun 14, 2008 6:41:07 AM


This might be too much inside baseball for this blog, but you might know already from Frank that my blurb for the forthcoming edition of the FSR urges a return to mandatory guidelines.

I predicted in the immediate aftermath of Booker that the celebtrating on the defense side would be short-lived, because it wouldn't be all that long before they discovered that the newly unleashed discretionary sentencing regime was not an elixer guaranteed ALWAYS to be tasty to the defendant. Now it's coming home to roost.

The defense bar had (understandably) grown so used to the idea that the only departures were downward ones that it forgot the universe also contains a dimension called "up." The re-discovery of this fact is making attorneys like FPD unhappy, but it was certain to work out this way.

Posted by: Bill Otis | Jun 14, 2008 8:23:56 AM

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