Downward departures, Koon and Blakely

The West merits some sort of award for being the most interesting arena for sentencing developments these days. (Consider news here and here from California alone, and then throw in Judge Cassell’s work in Utah and Blakely happenings in Oregon and Colorado). And, of course, thoughtful readers of the blog perhaps now realize that I think the Ninth Circuit in Ameline (details here) has been the closest to getting Blakely “right” for the federal system.

Today, the Ninth Circuit today issued this order and amended opinion in US v. Rivas-Gonzalez, an interesting case (from Montana) in which the district court downward departed “by eight levels (from seventeen to nine), which even exceeded by three levels the degree of departure that Rivas had requested” based on “cultural assimilation.” The Ninth Circuit reversed this downward departure in a pre-Blakely decision, and today’s action only slightly amended the decision and reported on the circuit’s decision not to go en banc.

The case is interesting on the facts, especially in light of my recent posts here and here about sentencing windfalls and the possibility that purely advisory guidelines might create lower overall sentences. In addition, the dissents by Judges Pregerson and Wardlow contain interesting discussions of the Supreme Court’s decision in Koon v. US, 518 U.S. 1 (1996), and departure decision-making, and Judge Pregerson’s dissent for three judges also has a very interesting footnote about the possible impact of Booker and Fanfan.