Is the big bad government afraid of lil’ ole me?
As detailed this post, a few months ago I filed (with the help of great folks at Holland & Knight) an amicus brief arguing that the Eleventh Circuit should affirm the below-guideline sentence given to Sergeant Patrick Lett, a federal defendant with 17 years of honorable Army service including two tours of duty in Iraq. (Background is here and here, and where you can find my filed brief.) After filing my amicus brief and learning that the Eleventh Circuit had scheduled oral argument in the case, I filed a motion a few weeks ago requesting some oral argument time.
Today I have learned that the US Attorney for the Southern District of Alabama has formally opposed my motion for oral argument time. In this opposition, which can be downloaded below, the government asserts that “[a]ny argument offered by Professor Berman would merely be cumulative of points that will certainly be addressed” by Lett’s appointed counsel.
Needless to say, I have no interest in traveling to Alabama (at my own expense) for oral argument just to present cumulative points to the Eleventh Circuit panel. I authored the brief and now want a little argument time because I think Lett’s case provides a terrific example of how reasonableness review can and should be applied without excessive emphasis on guideline provisions. The case also is an excellent setting for exploring, as I have discussed here and here, whether and how federal sentencing laws can and should consider a defendant’s personal history of distinguished military service.
After last night’s disappointing football game, I would not expect anyone from SEC territory to be scared by a Buckeye. But perhaps the government just reasonable fears that it might not continue its winning ways on Booker reasonableness review if I am allowed to help even the (often uneven) appellate playing field.