CA1: harmless Kimbrough error

US v. Ayala, No. 07-1570 (8/28/08) (unpublished).  There is something disturbing about this opinion.  I don’t know what it is.  It might be because it is longer than most unpublished opinions.  Perhaps there is some big issue that the First doesn’t want to address that I am missing.  Maybe someone can comb through it and see. 

This case essentially denies a Kimbrough v. United States 128 S. Ct. 558 (2007) remand because it was harmless error (i.e. the court didn’t use the guidelines).  Since this is a crack case, he can move in the District Court for resentencing. 

The court rejects a standard Apprendi argument regarding drug quantity.  It also says that an argument regarding whether he was allowed to contest the PSR was done in an overly conclusory manner.  Next the First says that by agreeing with the probation officer to a lower enhancement for his “role” in the office, the First say that the general issue is waived.

Finally, the court says it can’t review a decision not to grant a downward departure because his criminal history might overstate his prior crimes’ seriousness, but, of course, the sentence could be reviewed for reasonableness.

And finally, a lifetime of supervised release is okay.