U.S. v. Blahstein is a great example of a court reaching to help the government. Granted, this comes from the Fourth Circuit that was proud to hold that the government can hold Americans as long as it wants with no review, so it can’t be taken too seriously.
Anyway, as most of you know, there still is some post-Booker controversy under Fed. R. Crim. P. 32(i)(1)(C), regarding whether a court must give notice of an intent to depart from what is known in the pre-sentence report or what is otherwise available in the record. In this case, the sentencing court, departed below the guidelines. The government didn’t object. Instead, since the defendant had reserved his right to appeal a suppression issue, the government cross-appealed.
The result is obvious. The defendant’s appeal is objected, and the Fourth, which seems to consider itself a part of the executive branch, remands for resentencing in accordance with the government’s wishes. Their reasoning obviously somewhat silly, since it treats the government like a “party” to litigation that was somehow prejudiced because it wasn’t completely put on “notice” of a potentially lower sentence. Apparently, this is just as bad as when the courts don’t tell defendants that they can spend a longer part of their lives in jail.
The message is clear: in the Fourth Circuit, if a defendant can appeal an underlying conviction, the government is will no longer be held to have waived a sentencing argument. On other hand, defendants can still waive stuff.
Strangely, unlike most bizarre criminal procedure decisions, this doesn’t seem to be explainable on the basis of class bias (which I can excuse as being due to the environment that most judges came of age in). This one shows little more than bias in favor of the government. I can’t explain it on any other grounds.
The one good thing about this case, is that it obliquely
cites a case with a cool name: United States
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