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February 22, 2018

"These guidelines exist in some kind of middle universe that I don't understand..."

1204504745fullresThe title of this post is one of my (many) favorite lines appearing in this Supreme Court oral argument transcript from yesterday's proceedings in Rosales-Mireles v. United States.  The case addresses whether a (small) guideline error will usually satisfy the plain error standard for correction of an error raised only on appeal, and I highly recommend that sentencing fans read the entire transcript.  There are too many amusing and interesting flourishes throughout the transcript to cover them all here, but this one little passage from early in the second part of the argument that provides a flavor of the overall direction of Justices' approach to this case:

JUSTICE KAGAN:  Mr. Ellis [Assistant to the Solicitor General arguing for the prosecution], Justice Gorsuch, when he was a judge, wrote this opinion which I'm sure you've read many times, and I just want to quote one sentence from it and then ask you what you think about it because he basically, you know, suggests why you maybe lose.

This rev up to a question from Justice Kagan is only one of many part of the transcript that leads me to think basically, you know, the government is going to lose this case. Evan Lee in his SCOTUSblog preview of the Rosales-Mireles argument highlighted effectively why this case is sure to be an up hill climb for the government, and little in this transcript suggests otherwise.

I have not yet noted who spoke the line I have used in this title of this post, and I suppose at this point it would be fun to encourage readers to guess.  I suspect hard-core Court watchers with sentencing affinity may readily be able to figure out who said this, but arguably any and every Justice (and any and every judges and any and every practitioner) sometimes feels that, post-Booker, the guidelines exist in some kind of "middle universe." 

At the risk of making inappropriate suggestions, I do think the Justice who spoke this particular line might be able to engender a special kind of new fandom if in the future he were to suggest that the federal sentencing guidelines "exist in some kind of Middle Earth." With a single line, J.R.R. Tolkien fans might start showing up at US Sentencing Commission hearings as well as giving this Justice the kinds of adoration some colleagues get. And then my students will finally understand why I often walk around clutching the US Sentencing Guidelines Manual saying "My Precious."

UPDATE: I see that Evan Lee now has this "Argument analysis" up at SCOTUSblog under the heading "Justices hint at categorical approach to correcting forfeited Sentencing Guidelines errors." Here is how it starts:

Sometimes, an appellate court uses oral argument to help it decide who ought to win.  Other times, the justices know who will win, and oral argument becomes an opportunity for the judges to use counsel as a sounding board as to how the opinion should be written. W ednesday’s Supreme Court oral argument in Rosales-Mireles v. United States had the earmarks of the latter.

February 22, 2018 at 10:40 AM | Permalink


Sounds like something Justice Samuel Alito would say. I think I remember it as a rebuke to the argument Justice Anthony Kennedy said.

Posted by: Eric Knight | Feb 22, 2018 11:02:09 AM

The person who said it -- the transcript is available on its website -- has made many quips during oral argument in a simple vein. The person once made a dig at Scalia involving Madison's video game preferences, to provide a spoiler of sorts.

Posted by: Joe | Feb 22, 2018 12:41:59 PM

I have made similar typos in the past as well. My non-existent kingdom for an after the fact editing feature.

Posted by: Joe | Feb 22, 2018 12:42:54 PM

These are all clowns wasting time, stealing tax payer money. Impeach them all. Replace them with members of the jury pool from Northern Virginia.

Posted by: David Behar | Feb 22, 2018 1:14:44 PM

Once again Behar has nothing intelligent to say...

Posted by: atomicfrog | Feb 22, 2018 1:55:10 PM

If the discussion on the costs of resentencing being relatively minimal makes it into the final opinion, one should expect this language to be cited in Graham/Miller cases in the future in states that drag their heels in changing LWOP cases.

Posted by: Erik M | Feb 22, 2018 3:03:14 PM

Hi, Atomic. I am quoting Justice Scalia.

Posted by: David Behar | Feb 23, 2018 8:49:31 AM

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