Circuits back to Booker business

A quick afternoon tour of the federal circuit websites reveals that every circuit that has posted opinions today has at least one ruling addressing Booker or a related sentencing issue.  As detailed in this post, I have given up trying to follow all the circuit Booker action; I will only note rulings that, for whatever reason, catch my eye or that readers suggest are especially noteworthy or interesting.  So far, these circuit court rulings have caught my attention today:

From the Fourth Circuit, the severity of the sentence seems noteworthy in US v. Robinson, No. 04-4388 (4th Cir. Apr. 18, 2005) (available here).  Robinson, a young man with an IQ measured at 70 who was abused as a young child, was convicted at trial of a string of armed robberies committed when he was 16 years old.  The district court sentenced Robinson to 32 years’ imprisonment, but the Fourth Circuit was forced to remand for resentencing because it determined that his many convictions under § 924(c) required statutory minimum sentences adding up to 182 years.  The Fourth Circuit commented: “While this result may seem manifestly unjust given Robinson’s age and well-documented intellectual limitations, it is the result mandated by Congress.”  I wonder, especially in light of Roper and Atkins and points I made in this post, if Robinson might on remand challenge his sentence on Eighth Amendment grounds.  Amicus brief anyone?

From the Ninth Circuit, a post-Booker sentence affirmance seems noteworthy in US v. Cortez-Arias, No. 04-10184 (9th Cir. Apr. 18, 2005) (available here), principally because Booker is not really addressed.  In Cortez-Arias, the Ninth Circuit affirms a 16-level sentencing enhancement in an illegal re-entry case based on its conclusion that a prior conviction qualified as a “crime of violence.”  In Cortez-Arias, the Ninth Circuit (which is still debating plain error en banc) never examines whether the district court would have, in its discretion, imposed the enhancement under advisory guidelines and it simply asserts in a footnote: “Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court’s recent holding in United States v. Booker, 25 S. Ct. 738 (2005). See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n.8 (9th Cir. 2005).”  Besides the fact Booker is mis-cited, I checked Moreno-Hernandez to discover it remanded for “advisory” reconsideration; I am not sure why the same course should not have been followed in Cortez-Arias.  (I suppose it is possible counsel did not ever raise Booker on appeal, but that seems unlikely.)

From the Eleventh Circuit, a post-Booker reversal seems noteworthy in US v. Smith, No. 02-13211 (11th Cir. Apr. 18, 2005) (available here).  In Smith, the district court found that the defendant’s non-Hodgkin’s lymphoma, which weakened his immune system, justified a 20-level downward departure so that the defendant could be sentenced to time served.  The Eleventh Circuit noted that defendant “has continued to work as a Dade County water and sewer technician …, and is thereby exposed to countless bacteria on a daily basis [and also] sponsors musical promotional parties attended by hundreds of people, again subjecting himself to the risk of exposure to bacteria, virus and fungus infections.”  It thus held, without any express discussion of the 3553(a) factors, that “[r]egardless of whether, in a pre-Booker world, the sentencing guidelines are interpreted as mandatory, or now, in a post-Booker world, they are considered advisory, it was unreasonable and/or clearly erroneous for the district court to depart downwardly as far as it did in this case.”