Appellate Law

CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall

By S. COTUS

US v. Rodriguez , No. 06-2656.  This case is by Selya.  The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First?s holding that sentencing disparities due to lack of ?fast-track programs for the processing of immigration crimes? in some districts must be remedied by variances.  Without reading the case, I started writing snarky comments about Selya.  Then I read it, and he surprised me!  He actually holds that post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) matter. 

He writes:

In fidelity to the Supreme Court's new gloss, we abrogate Andújar-Arias [507 F.3d 734 (1st Cir. 2007) (our coverage here)] to the extent that it is inconsistent with this opinion, vacate the sentence appealed from, and remand for resentencing.

His analysis can be boiled down to this:

• Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission.
• ... Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." ...
• the Commission has "not take[n] account of empirical data and national experience" in formulating them...
• Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract.

...If raised, the sentencing court will have to answer this question in a particular case. And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." ...

I got some more... and even stuff for non-criminal law types.

But, that is not all.  The Selya splits with the Fifth on whether consideration of fast-track disparities is foreclosed and says ?The Act, by its terms, neither forbids nor discourages the use of a particular sentencing rationale, and it says nothing about a district court's discretion to deviate from the guidelines based on fast-track disparity.?  See United States v. Gomez-Herrera, ___ F.3d ___ (5th Cir. 2008) [2008 WL 886091].

Then Selya mocks the government for saying that an exercise of judicial discretion would somehow destroy prosecutorial discretion. 

There is a bit of flaky stuff about 3553, I think that matters is that he gets a remand and the District Court gets to do it again, but it isn?t bound to deviate on the basis of a fast-track prograem.

Of more general interest Selya starts laying down the parameters of the First?s ?law of the Circuit? which all appellate practitioners need to understand.  You also need to understand the differences between the First? Circuit?s ?law of the circuit? rule and every other circuit. They are different.  If you can?t identify the differences between the rule in at least three circuits, you are a walking malpractice action.

He writes:

As a general rule, newly constituted panels in a multi-panel circuit are bound by prior panel decisions closely on point. This law of the circuit doctrine is a corollary of the principle of stare decisis. ...

    In this spirit, courts have recognized that the doctrine admits of exceptions. The most obvious exception applies when the holding of a previous panel is contradicted by controlling authority, subsequently announced (say, a decision of the authoring court en banc, a Supreme Court opinion directly on point, or a legislative overruling). ... A second, less obvious exception, comes into play in "those relatively rare instances in which authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind." ... The situation here possesses elements of both of these exceptions.

(cites omitted, because you should know them)

Full post as published by Appellate Law and Practice on June 04, 2008 (boomark / email).