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December 7, 2009

Supreme Court grants cert on applicability of Booker in sentencing modifications!

I am surprised and pleased to report that the Supreme Court today announced that it will be reviewing another important federal sentencing issue this term: whether and how Booker impacts a court's sentencing authority in sentence modification proceedings.  Here are the basics from this report at SCOTUSblog:

The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence. The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

Other matters will now take me off-line for the next few hours, but I hope to comment on this surprising new sentencing grant later in the day.  In the meantime, I hope commentators will speculate about why SCOTUS took this particular case at this particular time.

UPDATE:  Here is the basic AP coverage of this grant in Dillon, and SCOTUSblog has helpfully posted the Third Circuit's opinion here and the cert petition here.  As DEJ notes in the comments, the defendant in Dillon has good, sypathetic facts, which perhaps explains why the Justices decided that he should get the golden ticket to come to the magical SCOTUS factory with an issue that has been pressed by perhaps hundreds of other defendants.

December 7, 2009 at 10:23 AM | Permalink


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» Another Sentencing Guidelines Case from Crime and Consequences Blog
The U.S. Supreme Court this morning agreed to review another case sifting through the debris of the United States Sentencing Guidelines following its 2005 decision in United States v. Booker, 543 U.S. 220. The new case is Dillon v. United... [Read More]

Tracked on Dec 7, 2009 11:33:31 AM


The 3d Circuit's opinion below can be found at 572 F.3d 146. In it, the panel states: "If Booker did apply in proceedings pursuant to § 3582, Dillon would likely be an ideal candidate for a non-Guidelines sentence." This language may have caught the Court's attention.

Looking at the SCOTUS docket, the government waived response but the Court then requested one. I'm going to be interested in reading the cert petition to gain more insight on "why this case; why now."

I have a client whose cert petition on this issue was distributed for last Friday's conference. This was the first distribution, and the government waived response. His petition was not ruled on today. But in his case (as in Dillon), the district court said at the initial sentencing that he was upset about the sentence he HAD to impose and that "justice" had nothing to do with his sentence.

Obviously, at least 4 Justices are interested in this issue.

Posted by: DEJ | Dec 7, 2009 12:39:11 PM

The cert petition just appeared on SCOTUSBlog: http://www.scotusblog.com/wp/wp-content/uploads/2009/12/09-6338_pet.pdf

Posted by: DEJ | Dec 7, 2009 12:46:58 PM

Obviously, at least 4 Justices are interested in this issue.

You would like to hope that, if they are at all strategic, those four Justices believe they have a fifth vote for reversal.

Posted by: Marc Shepherd | Dec 7, 2009 1:42:24 PM

It was also an excellent cert petition by the AFPD.

Posted by: lawbeing | Dec 7, 2009 2:17:05 PM

Attempting to discern the intent of the Supremes is, of course, dicey business, but here's my take. The Court has now granted cert. on at least 2 fairly non-controversial issues - this one, and the calculation of Good Conduct Time for federal inmates. By non-controversial, I mean that there is no major split in the Circuits. On the "advisory upon resentencing" issue, the Ninth Circuit is the only court to intimate that is allowable (in Hicks, IIRC). On the sentence computation issue, ALL 10 circuits to rule have upheld the BOP's application of the statute. I think that, for whatever reason, the Court is looking to clear up a few lingering, but really not active issues to put them to bed once and for all. Their motivation? I honestly have no idea, but that's my two cents worth.

Posted by: anon | Dec 8, 2009 8:23:55 PM

Agreed with anon, of 12/8. The odds of SCOTUS deciding that the Ninth Circuit got it right while the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits all got it wrong seem very, very long. This grant of cert. seems motivated by the fact that the cert pool clerks are probably tired of reading the hundreds of petitions they got on this issue this year, and they just want to put it to rest once and for all. Waiting for the Ninth Circuit to revisit this issue en banc wouldn't accomplish that.

Posted by: lawguru | Dec 16, 2009 3:02:37 PM

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