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December 23, 2008

Three wise sentencing opinions coming from the east (and west) this holiday week

Wise menI should know better than to try biblical allusions during this holiday week, but a trio of new and notable sentencing opinions from the First Circuit make a three wise men analogy almost irresistible. The these opinions sharing sentencing wisdom from the east are US v. Giggey, No. 07-2317 (1st Cir. Dec. 22, 2008) (available here), US v. Sherman, No. 08-1385 (1st Cir. Dec. 22, 2008) (available here), and US v. Caraballo, No. 08-1555 (1st Cir. Dec. 22, 2008) (available here).  Here is a quick account of what's covered in these cases:

Caraballo considers whether "the Sentencing Commission's recent amendment to the drug quantity table, USSG App. C, Amend. 706 (2007), offer[s] a potential remedy to a defendant who, although convicted of a drug-trafficking offense involving crack cocaine, was ultimately sentenced as a career offender."  (The panel says no go to the defendant seeking a sentence reduction.)

Sherman considers whether there was sufficient evidence to support a defendant's jury conviction for possession of a firearm in furtherance of a drug trafficking crime.  (The panel says there was, just barely.)

Giggey, which is likely the most important ruling of this trio, starts with this introduction: "The court took this case en banc to consider again whether a conviction for a non-residential burglary is per se a 'crime of violence' under the Career Offender Sentencing Guideline, U.S.S.G. ยง 4B1.2."  (Not anymore says the full First Circuit (which right now has only two more judges than a regular circuit panel).)

Though most sentencing decisions from the First Circuit are thoughtful, these three opinion cover a lot of sentencing ground quite cautiously and conscientiously.  Thus, I think it is fair to describe all the opinions as wise (though I suspect very few defendants will consider them divine).

UPDATE:  The Tenth Circuit has also been churning out a number of notable sentencing opinions this week, too.  I cannot do all the opinions justice (which can be accessed via the Circuit's opinion's page) through a quick summary, but there is new stuff to be found about crack sentencing and crime of violence priors and other classic modern federal sentencing issues.

December 23, 2008 at 02:59 AM | Permalink


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Nice post. I like all the three opinions. Keep up the good work.

Posted by: Free wills | Dec 23, 2008 3:45:40 AM

doug, although I haven't read the three opinions yet, based on your summary it reinforces my email to you concerning the importance of a law school class on the nature of prior convictions in the modern era of criminal sentencing. All three cases involve the impact of recidivism on the ultimate sentence. Any practitioner will soon learn that prosecutors and legislators have gotten very creative, and draconian, about the role of prior convictions in determining criminal sentences. ACCA and Felon in Possession being two prime examples.

bruce cunningham

Posted by: | Dec 23, 2008 8:05:05 AM

Fix link to Caraballo.

Bruce, Law schools are not going to teach this, because no law school wants to admit that it is training students to represent the kind of scum that would even be suspected of a crime.

Posted by: S.cotus | Dec 23, 2008 11:38:58 AM

That's right, S.cotus. No law schools have any programs whatsoever dedicated to indigent defense or capital post-conviction relief.

Posted by: Jay | Dec 23, 2008 1:04:06 PM

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