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First Circuit dismisses government sentencing appeal with peculiar request

By Douglas A. Berman

I enjoy sentencing law and policy because it is often an effective setting for the exercise of lawyerly creativity in the pursuit of substantive justice.  But a First Circuit ruling today in US v. Giggey, No. 09-1542 (1st Cir. Dec. 14, 2009) (available here), suggests that some federal prosecutors may be getting a little too creative in their pursuit of sentencing appeals. Here is how the unusual opinion in Giggey starts and ends: This appeal is a sequel to our en banc decision in United States v. Giggey, 551 F.3d 27 (1st Cir. 2008), in which we remanded a criminal case for re-sentencing.  Following the new sentence the government now appeals; it does not challenge the new sentence on the merits but requests that we ask the Sentencing Commission to clarify how courts ought properly to apply the Sentencing Guidelines to non-dwelling burglary...continue to full post

Full post as published by Sentencing Law and Policy on December 14, 2009 (boomark / email).