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November 10, 2009

Big dissent from Ninth Circuit's denial of en banc review of reasonableness ruling

A helpful reader made sure that I did not miss the decision by the Ninth Circuit to deny en banc review in US v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (discussed here), a case decided this past June in which the panel had reversed a within-guidelines sentence as substantively unreasonable.  What makes this latest development especially blog-worthy is the dissent from the denial of en banc review, which is authored by Judge O'Scannlain and joined by six other Ninth Circuit judges.  Here is how this dissent gets started:

This is the first published opinion in this circuit reversing a within-Guidelines sentence as substantively unreasonable.  The panel reaches this unprecedented result by casting aside Supreme Court and Ninth Circuit precedent in three ways: first, by failing to apply the appropriate standard of review; second, by recognizing a brand-new category of sentencing factors whose consideration by the district court warrants virtually no deference; and finally, by assuming a policymaking role properly reserved to the district court.  I must respectfully dissent from our failure to rehear this case en banc.

The closing paragraph of the dissent also seems worth quoting:

This is not just another sentencing case.  Employing what amounts to a de novo standard of review, the panel becomes the first in our circuit to publish an opinion reversing a within-Guidelines sentence as substantively unreasonable.  In the process, the panel recognizes a brand-new category of sentencing considerations purportedly undeserving of deference, and usurps the policymaking role of the district court as well as the Sentencing Commission.  For these reasons, I respectfully dissent from the denial of rehearing en banc.

I doubt that the Supreme Court would take up this case even if the Solicitor General now considers an appeal to SCOTUS.  But this dissent sure suggests that at least a few Ninth Circuit judges are eager to have this case added to the Justices' future dance card.

November 10, 2009 at 06:59 PM | Permalink


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Before federalist blows a gasket, I'm going to copy from your old post

"Notably, two of the three judges on the panel that decided Amezcua-Vasquezare appointees of Republican presidents, and thus folks should resist the urge to assume that this important ruling reflects the judgment of just the more liberal members of the Circuit."

(The third is not any of those you'd like to think it is).

I'm really starting to think that the 9th circuit is more trouble than its worth, liberal members aside. What is the deal with keeping circuits like the 5th and the 9th when there's tiny circuits like the 1st? Redraw the dividing lines so that each circuit has about the same population, caseload, and/or judges. So what if California and NY and/or Texas have their own circuit?

Posted by: . | Nov 10, 2009 7:10:40 PM

Oh this interesting. Total US pop is 300, ignoring DC (pop less than 1), per circuit is 27. Population of CA is 36. In other words, if you divided the US into 11 circuits with equal population, CA would need one and a third circuits. (NY and TX are ok)

Posted by: . | Nov 10, 2009 7:16:57 PM

Oh hey DC sniper died last night ... at 9:11 pm.

Posted by: . | Nov 11, 2009 9:39:14 AM

I will renew my suggestion: Court of appeals judges should rotate among circuits, for example in staggered 3, 5, or 7 year terms. This would be a logistical pain in the neck in many ways, but it would also be the best way to bring some degree of consistency to the rulings of, say the 8th/10th/5th/11th circuits vs. the 1st/2d/3d/9th. The system we have now, particularly with regard to criminal and habeas cases, but also in other areas, weakens the core concept of equal protection under law (if not the specific requirements of the Equal Protection clause). No one can seriously argue that the same law is being applied in the 5th/11th vs. the 3d/9th circuits, for example. And of course these circumstances are particularly grevious in light of the fact that the circuits that apply the most narrow, cramped interpretations of individual rights are concentrated in the South: After all, we suffered through an armed civil war, followed by the Reconstruction Amendments, followed by a hundred-year campaign against Jim Crow, etc., in order to make sure that the same rights were available everywhere---particularly in that region of the country.

Posted by: Observer | Nov 11, 2009 10:09:56 AM

I would add to period's comment that these are not just any two republican appointees---Kleinfeld and Bybee (of torture memo fame) are without a doubt very conservative judges.

Posted by: anon | Nov 11, 2009 10:13:08 AM


Also interesting: two of the dissenting judges (which is a subset of the judges that voted yea on en banc) are Clinton nominees, Tallman and Gould.

Posted by: . | Nov 11, 2009 10:47:23 AM

Tallman is a conservative republican. He only got onto the court as part of a deal Clinton made to get Willie Fletcher onto the court. Gould is moderate, and I was somewhat surprised to see him join the dissent, given that he has wanted to expand judicial review of sentencing decisions.

The Ninth Circuit is not as liberal as people seem to think, thanks to 8 years of Bush II appointees and a number of bad Clinton judges, most notably Tallman.

Posted by: Anon | Nov 11, 2009 11:00:04 AM

Don't underestimate the effect of O'Scannlain crying to his daddy to overturn the other judges. O'Scannlain operates a farm team for certain Justices, who employ his former clerks. O'Scannlain uses these dissents (and his former clerks) to threaten his fellow judges if he doesn't get his way. He's a jerk, but it can be an effective strategy.

Posted by: Anonymous | Nov 11, 2009 10:39:01 PM

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