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May 9, 2018

Lots of sentencing fun — thanks to enduring Johnson fallout — to be found in cert pool relists

The Justice of the Supreme Court will have a conference tomorrow to discuss cert petitions, and that means John Elwood has another of his always valuable "Relist Watch" posts up at SCOTUSblog. This version of relists has lots that should interest sentencing fans, and I will reprint those parts here:

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else....

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again.  The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times).  This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move.  Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue.  This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals.  But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States17-7521.  Neither of the issues it presents is very promising.  First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute.  But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits.  The other issue the petition raises — whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun — is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

May 9, 2018 at 05:41 PM | Permalink


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