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September 11, 2008

Important and impressive Fifth Circuit ruling concerning crack retroactivity

A helpful reader alerted me to an important and impressive opinion concerning crack retroactivity issues from the Fifth Circuit, US v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (available here).  Here is the reader's effective summary:

This opinion is by the Fifth Circuit regarding the right to an attorney in a crack retroactive amendment hearing. The defendant had been sentenced for a crack offense over a decade ago and applied for a reduction of his sentence under the retroactive amendment. In doing so, he also requested an attorney to represent him.  The government responded with a complex, 25-page sentencing memorandum.  The government contended, among other things, that the defendant was not entitled to an attorney and that he should receive no greater than a five-month reduction -- he could have received up to a 40-month reduction.  The next day, the district court issued a short order granting the defendant a five-month sentence reduction.  The defendant then appealed and again asked for an attorney. The sole question before this panel was whether the defendant should be appointed counsel to represent him on appeal. The court answers that question in the affirmative. In reaching that result, the court covers a lot of interesting ground.

September 11, 2008 at 08:02 AM | Permalink


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Posted by: timothy moriarty | Sep 11, 2008 8:32:25 AM

First, the government's position below was ridiculous, on both the necessity for counsel issue and the amount of reduction issue.

Why is the government so afraid of giving this person counsel, especially when there is obviously a disagreement over facts and the amount of reduction warranted? In such a situation, the issue is far from “straightforward.” Counsel should have been appointed, and the government (promoting justice) should have recognized the virtue of having counsel arguing both sides of the issue.

The government's argument for a top-of-the-amended-Guideline sentence due to his criminal history should fail. The amended GL ranged takes into account his criminal history. And the acknowledgment by the USSC that the crack amendment was only a "partial fix" should warrant a bottom of the amended GL in almost all cases. After all, even the USSC has admitted that the amended GL is still too high.

Finally, I give great credit to the 5th Cir. for recognizing that its prior precedent (Whitebird) is not controlling after the USSC's amendment to 1B1.10. Overall, the panel engaged in a thorough analysis and nicely concluded by detailing the several issues that remained before the Court.

Anyone have any speculation on why one member of the panel only joined in Part III of the opinion?

Posted by: DEJ | Sep 11, 2008 11:35:49 AM

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