« In praise of thoughtful judging on the Second Circuit | Main | Ice oral argument transcript now available »

October 14, 2008

Some post-Booker SCOTUS doings from a per curiam and a dissent

I thought the biggest sentencing news to come from the Supreme Court today would be either the denial of cert in the Troy Davis case (details here from the AP) or the oral argument in the Oregon v. Ice Sixth Amendment case (background here).  But, thanks to this post from SCOTUSblog, I just discovered that the Court handed down a notable per curiam decision and Justice Scalia issued a significant dissent in cases involving post-Booker issues. 

1.  The per curiam opinion in Moore v. United States (07-10689) is available at this link, and here are the important paragraphs from the end of the very brief opinion:

Proceeding pro se, Moore again petitioned for certiorari, arguing that the Eighth Circuit’s new characterization of the transcript is wrong, and that it is “clear that the district court thought judges had no discre[t]ion to reject” the Guidelines ratio.  Pet. for Cert. 7. The United States agrees that the Eighth Circuit erred, see Brief for United States 9, and so do we.

When the District Court said that “[i]t isn’t the judges” but Congress that “looks at the [G]uidelines and decides whether or not they should be put . . . in force,” the court showed that it did not think it had the discretion later upheld by Kimbrough.  App. C to Pet. for Cert. 56. The Eighth Circuit’s first decision recognized this, describing the District Court as “concluding” (correctly under circuit precedent) that it was not “authorize[d] . . . to reject” the crack/powder disparity. Moore, 470 F.3d, at 770 (internal quotation marks omitted). In light of the District Court’s comments at sentencing, the Court of Appeals should have remanded the case to the District Court for resentencing under Kimbrough.  We express no views on how the District Court should exercise its discretion at resentencing.

2.  Justice Scalia’s (solo) dissent from denial of certiorari in Marlowe v. United States (07-1390) is available at this link, and here is a key passage:

On appeal, the Sixth Circuit applied a presumption of reasonableness to the sentence because, in light of the judge-found fact that Marlowe had possessed the state of mind required for second-degree murder, the sentence was consistent with the Guidelines.  United States v. Conatser, 514 F.3d 508, 526–527 (2008).  In other words, the Sixth Circuit found the life sentence lawful solely because of the judge-found fact that Marlowe had acted with malice aforethought.  This falls short of what we have held the right to trial by jury demands: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”  United States v. Booker, 543 U. S. 220, 244 (2005).

I would grant the petition for certiorari, so that we may either forthrightly apply Booker or announce that the case is overruled.

October 14, 2008 at 03:02 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Some post-Booker SCOTUS doings from a per curiam and a dissent:


Moore is the perfect example of the Eighth Cir's reluctance to follow the Supreme Court's instructions in Gall and Kimbrough. Maybe the Cir. will finally “get it” with this per curium opinion.

Reading this reminded me of another 8th Cir. case where I suggested that SCOTUS should GVR again -- a second time -- in light of Gall. See http://sentencing.typepad.com/sentencing_law_and_policy/2008/07/two-notable-win.html

Posted by: DEJ | Oct 15, 2008 5:38:05 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB