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The crush of appellate resentencing orders following January’s Supreme Court decision in U.S. v. Booker has more than one prosecutor lamenting, in the words of swing guitarist Dan Hicks, “How Can I Miss You If You Won’t Go Away.” All 14 U.S. attorneys in the jurisdiction of the 9th U.S. Circuit Court of Appeals have banded together to ask the full circuit to reconsider its Feb. 9 ruling, which held that nearly every defendant with an appeal pending at the time of Booker, 125 S. Ct. 738 (2005), has a right to a new sentencing hearing. In U.S. v. Ameline, No. 02-30326, the 9th Circuit said that a judge’s reliance on the sentencing guidelines as mandatory, prior to the Booker and earlier Blakely v. Washington (124 S. Ct. 2531) decisions, constitutes “plain error.” Finding plain error entitles most defendants with direct appeals pending to rectify violation of their constitutional Sixth Amendment right to fair trial through new sentencing hearings. There are likely to be hundreds in the Western states alone. In 2002, courts within the 9th Circuit imposed 14,000 guideline sentences, according to the government’s brief. ‘Profound consequences’ The prosecutors also asked the circuit to stop churning out unpublished orders remanding for resentencing based on Booker and Ameline, while the en banc request is under consideration. The Ameline decision “has profound and potentially destabilizing consequences for the administration of the criminal justice system, particularly in this circuit, whose district judges impose more guidelines sentences per year than any other circuit,” according to Michael A. Rotker, an attorney with the U.S. Department of Justice. He filed the en banc request on behalf of U.S. Attorney William W. Mercer in Montana, where Alfred Ameline was prosecuted in a drug case. Rotker warned that resentencing could give defendants the benefit of shorter prison terms to which they are not entitled. “Such an avalanche of remand orders would threaten to bring the criminal justice system to a complete standstill by overtaxing the resources of not only the federal district judges, but also the government and the defense bar,” Rotker wrote. And it wouldn’t stop there. Dissatisfied defendants have a right to appeal the new sentences as unreasonable, creating a potential second wave of appeals. The circuit responded with an order directing the federal public defenders in the 9th Circuit to file an amicus brief on Ameline’s behalf by March 2. A ‘great disservice’ Steven Hubachek, lawyer for Federal Defenders of San Diego, took over Ameline’s appeal from his Montana defense attorney last week. Hubachek said that a halt in the flow of remand orders “would be a great disservice . . . to people serving short sentences that will expire without a chance of relief.” The greatest flaw in the sentencing system is that it is hard on first offenders, the least likely to be repeat offenders, he said. “They would be disproportionately hurt by a stay [of remand orders] and have the best chance to benefit from judicial discretion,” he said. Hubachek pointed out that the majority of circuits have so far adopted a plain-error approach similar to Ameline. The 4th Circuit, based in Richmond, Va., had the first and one of the more liberal plain-error standards, along with the Cincinnati-based 6th Circuit and the 9th Circuit. The Atlanta-based 11th Circuit produced a much narrower plain-error standard that requires defendants to show they were prejudiced on a case-by-case basis, in U.S. v. Rodriguez, No. 04-12676. That was just recently bolstered by a similar decision in the Boston-based 1st Circuit, U.S. v. Antonakopoulos, No. 03-1384. The 8th and 10th circuits, in St. Louis and Denver, respectively, bypassed panel rulings, and contemplate full-court en banc reviews. The 8th Circuit’s ruling is set for early March.

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