We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

11TH CIRCUIT BAR FIGHT

Last week, the 11th Circuit denied en banc review of a case in which a pre-Booker Guidelines career offender sought collateral review of his sentence, based on the void-for-vagueness doctrine of Johnson v. United States. No surprise there. But a number of judges on that court, including the former acting chairman of the Sentencing Commission, Judge William Pryor, wrote 27 weird pages explaining the soundness of their denial.

Essentially, the majority said that the Guidelines were always advisory, even when they were mandatory, because the mandatory guidelines were never lawful. Therefore, a judge could have given the defendant the same high sentence even if he was not wrongly considered to be a career offender, despite the obvious fact that any judge who had done that would have been summarily reversed. If the sentence conceivably could not have changed, the majority wrote, then the ruling (in this case, Beckles) is obviously procedural, and the defendant cannot rely on it to change his sentence, because it is not retroactive.

Judge Rosenbaum and two other judges threw 36 pages back at the majority:

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. 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.

The inmate, Stoney Lester, was lucky enough to get released on a 2241 motion by the 4th Circuit – in which circuit he was imprisoned at the time – making the 11th Circuit denial academic. But the otherworldly logic of the majority, especially from a circuit fast becoming notorious for accepting any tissue-thin reason to deny a defendant constitutional or statutory justice (see here and here, for instance), is mind-numbing.

Lester v. United States, 2019 U.S. App. LEXIS 12859 (11th Cir. Apr. 29, 2019)

– Thomas L. Root