ith resolute quickness, the Ninth Circuit U.S. Court of Appeals on Friday voted to rehear a controversial drug sentencing case before an en banc court.
U.S. v. Buckland, which overturned mandatory drug sentences, will be argued before an 11-judge panel next week, giving the parties an astonishingly short amount of time to prepare for oral argument.
The three-judge panel's opinion, authored by Judge A. Wallace Tashima and issued in August, ruled that under Supreme Court precedent in Apprendi v. New Jersey, 530 U.S. 466, mandatory drug sentencing statutes, as written, are unconstitutional.
The panel overturned Calvin Wayne Buckland's 27-year sentence under Apprendi because the trial judge made findings of fact at the sentencing stage that increased Buckland's sentence above the statutory maximum. Under Apprendi, such determinations are to be made by the jury.
But then the Ninth Circuit took an additional step no other court has yet made. Since judges have traditionally been the ones to make those determinations under the statute (which doesn't say whether a judge or a jury should decide), and under Apprendi they cannot, the Ninth Circuit tossed the statute itself.
Five other circuits have decided similar cases differently. The Ninth Circuit is the only one to have overturned the statute.
The en banc order "is not a surprise," Hastings College of the Law Professor Rory Little said. "It seems to me to be clearly an instance where they're going to have to come in line with the other circuits."
The members of the 11-judge panel for the Sept. 26 hearing have not been announced.
All 14 U.S. attorneys in the Ninth Circuit were united in asking for a rehearing, arguing that they would consider appealing every sentence affected by Buckland if it remained the law of the land.
J. Douglas Wilson, the Northern District U.S. attorney's chief appellate lawyer, also filed a declaration stating that there was chaos in the courts as a result of Buckland. Others have defended it, saying the so-called chaos is merely a temporary reaction to a fundamental, but just, change in the sentencing laws.
Buckland's lawyer filed his response to the U.S. attorneys' petition for rehearing in the first week of September. Even with a controversy over Internet monitoring embroiling the Ninth Circuit and last week's terrorist attacks -- which temporarily stranded Chief Judge Mary Schroeder in Washington, D.C. -- the court acted swiftly to approve a rehearing.
A majority vote of the court's active judges are required to hear an en banc case. The court hears such cases for a variety of reasons, including to correct errant decisions, to clarify circuit conflicts, or if the case is of high public importance.
