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Judge Edward E. Carnes is defending the 11th U.S. Circuit Court of Appeals’ interpretation of the new federal sentencing rules. Earlier this year, Carnes wrote on behalf of a three-judge panel that ruled against a convicted drug dealer who claimed that his nine-year sentence was unconstitutional as a result of the U.S. Supreme Court’s having struck down the Federal Sentencing Guidelines. Carnes and the panel rejected the Florida man’s argument, saying that he could not prove that his sentence would have been different without the mandatory guidelines. In a solitary opinion agreeing with the full court’s vote not to reconsider that decision, Carnes has hit back at criticism from 11th Circuit colleagues Gerald B. Tjoflat and Rosemary Barkett and 7th Circuit Judge Richard Posner. U.S. v. Rodriguez, No. 04-12676 (11th Cir. April 19, 2005). At issue is how the 11th Circuit and other appeals courts are wrestling with the U.S. Supreme Court’s decision in U.S. v. Booker, 125 S. Ct. 738, which struck down the guidelines as unconstitutional. In February, Carnes wrote that Vladimir Rodriguez had shown no “reasonable probability” that the district court judge would have imposed a different sentence had the guidelines not been mandatory but only advisory, as they are now under the Booker ruling. In a 7th Circuit decision 10 days later, Posner harshly questioned the 11th Circuit’s decision not to ask the district court how it would sentence under advisory guidelines. “[W]e cannot fathom why the Eleventh Circuit wants to condemn some unknown fraction of criminal defendants to serve an illegal sentence,” Posner wrote for the 7th Circuit in U.S. v. Paladino, 401 F.3d 471. In a 34-page opinion, Tjoflat publicly set out how he believes Booker should apply to the case of Rodriguez. In Booker, the Supreme Court had struck down the Federal Sentencing Guidelines because they authorized a judge, in violation of the Sixth Amendment to the U.S. Constitution, to increase a sentence based on facts that were not found by a jury or admitted by the defendant. At trial, Rodriguez did not challenge his sentence as a Sixth Amendment violation because the Supreme Court had not yet ruled the guidelines unconstitutional. So courts reviewed Rodriguez’s case for “plain error.” The panel decision by Carnes, Tjoflat wrote, was wrong because it failed to recognize Booker errors as “structural errors” that would necessarily pass the “plain error” test. Carnes’ approach, Tjoflat added, will make applying Booker “a meaningless formality in all but the rarest of cases.” Carnes responded with a blistering 43-page opinion. He wrote that Tjoflat’s argument that Booker errors were “structural” errors was based on an out-of-context reading of Justice Stephen G. Breyer’s opinion in Booker. “The only thing that is truly surprising is Judge Tjoflat’s new-found respect for dicta,” Carnes added later, criticizing Tjoflat for relying on nonprecedential musings of judges. Carnes saved for his last six pages his retort to Posner and the 7th Circuit’s questioning of why the 11th Circuit would condemn defendants to “illegal” sentences. Posner’s definition of “illegal” was too broad, Carnes argued, because it assumed that any case in which the “plain error” standard was used risked having a sentence become unallowable under Booker. The only way to prevent such “illegality,” Carnes added, would be to throw away all requirements that a ‘plain error’ standard be applied in cases in which a defendant did not object to sentencing at trial. “Only when all of these decisional and statutory doctrines and the important values they serve are thrown on the trash heap will we be able to reduce the numerator of that unknown fraction of defendants suffering from ‘illegal’ convictions or serving ‘illegal’ sentences to zero,” Carnes concluded.

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