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April 29, 2019

In sparring opinion surrounding en banc denial, Eleventh Circuit judges debate the metaphysics of Booker and Johnson

The full Eleventh Circuit needed only one sentence in this order in Lester v. US to deny en banc review in a case in which a pre-Booker career offender sought collateral review based on the void-for-vagueness doctrine of Johnson.  But a number of judges on that court, including the former Acting Chair of the US Sentencing Commission, Judge William Pryor, needed more than 60 pages to explain their views on the soundness of this denial.  While hard-core fans of habeas doctrines will likely enjoy all the back-and-forth within all the separate opinions, many sentencing fans might get a kick out of how Judge Rosenbaum characterizes Judge Pryor's account of the the past and present of sentencing law:

According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory.  Id. at 19.  That is certainly interesting on a metaphysical level.

But it ignores reality.  Back here on Earth, the laws of physics still apply.  And the Supreme Court’s invalidation of a law does not alter the space-time continuum.  Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants — including many who still sit in prison because of them.

I am tempted to joke that I still kind of feel like it was Justice Scalia's opinion in Blakely that did, in some sense, "alter the space-time continuum."  But rather than further joke or philosophize on these matters, I will just encourage readers to check out all the sound and fury to be found in Lester.

April 29, 2019 at 08:45 PM | Permalink


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