Appellate Law & Practice

But what a long 9/16ths of a second of sheer terror it was

By now, you know that the Third Circuit has put the pasties on the FCC’s fine resulting from the wardrobe malfunction.  The ruling is 103 pages and includes a description of all the people that have nothing better to do with their lives than write the FCC complaining about a nipple that has terrorized children from coast to coast. 

As Justice Scalia said, “The Nation will live to regret what the Court has done today.”

Third Circuit on what the Guidelines really mean

I have been wondering what became of US v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004) (SL&P coverage here) which was an order that held that the new format of the USSC is unconstitutional, because it essentially gives the executive too much ability to dictate how defendants are sentenced.  (Tnx 3dCirBlog)

While the 3d Circuit doesn’t quite agree with Detwiler, they In US v. Edward Coleman (No. 05-1348 June 15, 2006), they say that Booker, while not intended to be a remedy for the USSG’s arguably unconstitutional formation is a remedy for the ill that Detwiler set out. 

Thus, while Coleman’s argument that the Feeney Amendment unconstitutionally allows the President to control sentencing might have been persuasive while the Guidelines were still mandatory, it is misplaced under the now-advisory system. Regardless of the composition of the Commission, the Guidelines it promulgates do not control sentencing; the Guidelines’ recommended range may be modified or disregarded by a district court upon consideration of the other sentencing factors Congress has identified in § 3553(a).

This is interesting.  Does this mean that the 3d Circuit is showing that the guidelines cannot be presumptive?  After all, a presumption is a rule of law, and the 3d appears to be agreeing that it isn’t the role for the executive to be making this law. 

Third Circuit Immigration rank-a-thon

DoTD points to the 3d Circuit, which blows its collective top at an Immigration Judge. By now, we know that immigration judges have a bad name. But, this time, the Third Decides to catalogue everything that the Hon. Donald V. Ferlise has done recently.

The cases are:

• Cham v. Attorney General, 04-4251
  
• Shah v. Attorney General, 04-3607

 

Third Circuit and presumptive reasonability and restitution

• The Third Circuit Blog points out here, that the 3d ruled: 1) it does have jurisdiction to review within-guidelines sentences for reasonability; and 2) within-guidelines sentences are not presumptively reasonable. But, “the Court expressly withheld ruling on the standard of proof to be applied where a sentencing enhancement involves a separate crime.”  And SL&P comments here.
• Also, they have a post which begins, "The Third Circuit, in a very fractured en banc decision in United States v. Fallon, (3d Cir. Feb. 15, 2005), has ruled that Booker does not apply to either forfeiture or restitution."

CA3: censorship of naughty things ok

Thanks to Orin Kerr, the 3^rd Circuit Reversed the dismissal of the obscenity convictions in US v. Extreme Associates. 3d Circuit Opinion here.  District Court opinion here.  The lower court had held that their fake rape/death/etc. videos were protected on substantive due process grounds on the wake of   Lawrence v. Texas. A brief read reveals that the court does not really reach the merits of the privacy/substantive due process/etc. argument, but rather says that Lawrence didn’t really change things enough to warrant the lower courts revisiting obscenity issues. Now, ironically, the defendants will (if found guilty) go to jail.

CA3: AEDPA and Batson (writ granted)

Jon Pignoli at The Third Circuit Blog provides a lengthy analysis of  Wilson v. Beard, No. 04-2461 (3d Cir. Oct. 13, 2005) which discusses lots of AEDPA and Batson issues.  And speaking of that, The Federal Public Defender for the District of New Jersey has digests of Third Circuit criminal cases here.

Third Circuit Blog

The Third Circuit Blog has some interesting posts. Third Circuit...

• grants 2254 relief ... for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se
• Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement
• expounds on definition of “testimonial” in ruling that admission of out-of-court statement was harmless error
• holds that Federal courts lack authority to review state court retroactivity decisions

CA3: restitution and Booker

The 3rd Cir has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture.  See this post from the Third Circuit Blog for details.

Breaking News: 3d Circuit issues In Re: Owens Corning

Opinion

It discusses how “under what circumstances a court exercising bankruptcy powers may substantively consolidate affiliated entities.”  It reverses, but says it isn’t the fault of the District Court, because there was no law on that issue, anyway.

Earlier Filings: Petition for Writ of  Mandamus; Orders; Answers ; Replies; Opinion 1; Opinion 2;Writ
Designation of Judge

The Exonerated

Although it concerns neither appellate law nor my usual jurisdiction, I feel the need to note today's most important legal development.  Montgomery County (Pa.) prosecutors have announced that the Cos will not face charges for allegedly fondling a woman because there is "insufficient credible and admissible evidence" to support her baseless accusations. 

The world is just a little bit better place with Cliff Huxtable safely off the sex offenders registry.