Appellate Law & Practice

CA11 and a couple of sentencing issues

US v. Camacho-Ibarquen affirms a sentence, upon a conviction for attempting to re-enter the U.S. after a previous deportation. His argument focuses on the 16-level Guidelines enhancement that was imposed because the previous deportation was based on a crime of violence. The Court (1) rejects his argument that the relevant Guideline, § 2L1.2(b)(1)(A)(ii), is limited to those prior crimes for which the conviction took place within the last ten years (the Court interprets this section to have no such time limitation), (2) rejects his argument that the "rule of lenity" ought to yield the same result (because, the Court says, the rule of lenity comes into play only when the statute's ambiguity can't be resolved with ordinary rules of interpretation), and (3) rejects his Booker/Blakely argument. This last part is somewhat interesting to you Booker fans out there, because the Court says that his argument against this enhancement is barred by Almendarez-Torres, and even though that decision is somewhat shaky these days in light of Booker and other developments, the Supreme Court hasn't overruled it yet, and the Eleventh Circuit isn't going to do it for them, especially not on plain error review. Finally, they say that they're not even going to wonder whether it was plain error to treat the Guidelines as mandatory rather than advisory, because the defendant hasn't made that argument.

1st v. 9th on unpreserved Booker claims

Tom Lincoln reports on the split -- and the government's reaction --  here.

CA11 and Schiavo

Though some news reports had made it sound as though the Eleventh Circuit granted rehearing en banc in the Schiavo case this morning, it sounds from this report that what the Court did, instead, is grant leave to file the petition for rehearing en banc even though it was filed after the deadline that the panel had set. Under this interpretation of what's going on, the petition for rehearing en banc is now being reviewed and voted on. This would make more sense.

UPDATE: The basic argument in the petition for rehearing was that the federal "due process" right to life requires not only clear and convincing evidence in a state-court case like this, but also a plenary federal court review of whether there was in fact clear and convincing evidence. Panel rehearing denied in a one-page order (Wilson, J., dissenting). Rehearing en banc denied -- Judge Birch concurring on the grounds that the Schiavo statute is unconstitutional as a violation of separation-of-powers doctrine, Judges Carnes and Hull (the panel majority) concurring with some thoughts about the merits, Judges Tjoflat and Wilson dissenting with other thoughts about the merits, and Judge Pryor not participating because he's recuperating from surgery (get better soon). Oddly, given how firmly this Court has applied a "waiver" rule to deny relief to criminal defendants who try to raise a new argument (Booker) on petition for rehearing, nobody even broaches the possibility that the Schindlers' new argument is barred by the same principle. I'm not sure because I haven't read everything they filed, but my distinct impression is that the rehearing argument is different from the arguments they made in the District Court and before the panel.

CA11 to rehear Confrontation Clause case en banc

This morning the Eleventh Circuit ordered rehearing en banc in US v Yates, in which the original opinion issued back in November. The case concerns the Confrontation Clause of the Sixth Amendment. The panel reversed the convictions on the grounds that the defendants' Confrontation Clause rights were violated by the admission of testimony from a witness in Australia by way of video technology. The panel said, in a nutshell, that face-to-face testimony is required absent some particular good reason to the contrary, and there was no good reason to the contrary in this case of the sort that could not equally well apply in lots of other criminal cases. Chief Judge Edmondson, a member of the panel, concurred in the result and said "I write separately mainly to stress my doubts that the witnesses in Australia were testifying under oath at all." Can a clerk in Alabama really place somebody in Australia under oath in a legally meaningful sense? Interesting question -- as is the Confrontation Clause question itself.

Overlawyered and the bible

While today’s Overlawyered post displays some degree of introspection about whether people should be sentenced to death on the basis of the bible, and the Colorado Supreme Court’s decision in Harlan that jurors may not consult the bible when deciding whether to execute people, it makes one small error:

Overlawyered says:

The precedent won't matter much: Colorado changed its law in 1999 to have judges determine death sentences.

In fact, the US Supreme Court held in Ring v. Arizona, that juries now must decide whether to someone gets the death penalty.    So, the precedent does still matter.

There are a number of really deep issues floating around in the background which would be the subject for a good law review article. 

CA5 arbitration of collective bargaining agreement

Beaird Indus. Inc. v. Local 2297 is a Jolly opinion in an appeal from a district court summary judgment overturning the result of arbitration decision of a collective bargaining agreement. In doing so, the court suggested that a prior 5th circuit case on the subject might be in need of reconsideration.

CA5 denial of COA on Medillin issue

In Cardenas v. Dretke the court denied a COA on two groups of issues: exclusion of jurors opposed to the death penalty (along with a related ineffectiveness claim); and, given Cardenas’s status as a Mexican national, failure to notify the Mexican consulate. The court noted that this last issue was on certiorari in Medellin, and noted that the International Court of Justice had held that such claims could not be procedurally defaulted, but nevertheless rejected Caredenas claim. First, he had procedurally defaulted. Second, a prior case in the circuit held that the Vienna Convention did not create a judicially enforceable right. Third, Cardenas’s argument was that he would not have confessed if he had talked to the consulate; the court rejected this based on his knowing waiver of his 5th Amendment rights

Johnnie Cochran dead at 67

Breaking news: litigant and lawyer extraordinaire Johnnie Cochran dead at 67.  See Cnn.

CA1: A Booker remand a civil forfeiture

US v. Heldeman, No. 04-1915, affirms a civil forfeiture, but remands under Booker and United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005).

CA1: Duty to provide security

Rodríguez-Quiñones v. Jiménez & Ruiz, No. 04-1028, affirms a district court decision against a landlord for that claimed that they were “negligent in providing security.”  The victim was a doctor (or her mother.)  The defendants argued that there was no duty to provide security, but the court found that under Puerto Rican law, in fact there was such a duty.