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July 12, 2011

Judge Barksdale spotlights modern sentencing review challenges in lengthy dissent

An interesting little Fifth Circuit panel ruling in US v. Mudekunye, No. 09-10968 (5th Cir. July 11, 2011) (available here), came with a very lengthy partial dissent by Judge Barksdale that started this way:

I dissent only from the majority’s, under plain-error review, requiring resentencing for Mudekunye (part II.B.2.).  It has been almost 20 years since United States v. Olano, 507 U.S. 725 (1993), clarified application of plain-error review.  And, for reviewing sentences imposed through application of the Sentencing Guidelines, it has been over six years since United States v. Booker, 543 U.S. 220 (2005), held the Guidelines are only advisory.  In the light of Olano and Booker, it would seem that plain-error review would have been simplified and made more flexible.  Unfortunately, if not amazingly, just the opposite has occurred.

This is vividly reflected in the majority’s analysis and holding for Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and our precedent.  It’s time for our court to step back, re-examine, and simplify this important and all too often complex aspect for applying plain-error review to sentences imposed under the advisory Guidelines. Accordingly, I urge our court to review en banc this part of the majority opinion.

In vacating Mudekunye’s sentence, the majority emasculates the plain-error standard of review by applying it in a manner inconsistent with the Supreme Court’s and our precedent.  In an area of law it admits is unclear, the majority effectively creates a new rule: where defendant’s imposed sentence lies outside the correct advisory Guidelines sentencing range, defendant must be resentenced in district court. This rule is neither supported by precedent nor justified under plain-error doctrine.  The majority’s strained insistence on resentencing reflects that, within our circuit, plain-error review, in this context, has been weakened to the point of toothlessness, thereby defeating its many important and salutary purposes, including “to induce the timely raising of claims and objections . . . .”  Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

July 12, 2011 at 03:04 PM | Permalink

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Comments

Yes Rhesa because the 5th Circuit has consistently overturned criminal questions on plain error review...and that will stop all of these frivolous criminal appeals...but it won't.

Posted by: Neverbeenonthefiringline | Jul 13, 2011 12:53:36 AM

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