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The 9th U.S. Circuit Court of Appeals has ruled that extraordinary circumstances warrant the resentencing of two defendants by a federal judge who had questioned the constitutionality of the Federal Sentencing Guidelines 15 years before the U.S. Supreme Court issued its landmark ruling, U.S. v. Booker, 543 U.S. 220 (2005). Carrington v. U.S., No. 05-36143, and Tillitz v. U.S., No. 05-36144. On May 14, 1990, Craig Carrington pleaded guilty to conspiracy to distribute 500 grams or more of a mixture and substance containing cocaine under 21 U.S.C. 841(a) and 841(b)(1)(B). During sentencing, Judge Robert Bryan of the U.S. District Court for the Western District of Washington, said, “I’m faced with these guidelines, and it’s very frustrating because it has diminished my responsibility and my authority. But the reason for these guidelines is to do exactly that. That is, to diminish the judge’s discretion.” Bryan sentenced Carrington to 324 months in prison, the low end of the applicable guidelines range. On April 27, 1998, Robert Tillitz was convicted by a jury for conspiracy to import and distribute hashish. At his sentencing, Bryan said, “I ruled in this court a long time ago that it was my opinion that these guidelines were contrary to the United States Constitution. That issue has been laid to rest contrary to my view by the United States Supreme Court. So these guidelines . . . are part of the law of the land that bind me.” Bryan sentenced Tillitz to 360 months in prison. Following Booker, both Carrington and Tillitz appealed their sentences. Bryan pleaded with the 9th Circuit to rule that extraordinary circumstances warranted his resentencing Carrington and Tillitz. “[U]nder Booker, it is clear that the guidelines sentencing scheme was unconstitutional all along. It follows that defendants, still incarcerated under an unconstitutional sentencing scheme, would seek resentencing . . . .Yet, because of retroactivity rules, defendants serving unconstitutional sentences are offered no relief, no remedy, and no justice . . . .This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence,” he wrote in a November 2005 order. Citing “extraordinary” circumstances, the 9th Circuit last week granted Bryan’s request, despite the fact that, according to circuit precedent, Booker is not retroactive. Writing on behalf of the court, Judge Harry Pregerson said that the reservations Bryan expressed about the sentences, combined with his plea to the 9th Circuit to let him reconsider, amounted to “extraordinary” circumstances. The “two cases have weighed particularly hard on Judge Bryan’s conscience eight years and sixteen years, respectively, after the original sentences were imposed,” Pregerson wrote. “Our interest in the finality of judgment is not so strong that we would not allow a district court judge the opportunity to remedy what the judge considers to be an ‘injustice’ and to resentence a defendant to a sentence that is just and proper,” Pregerson said. 9th Circuit Judge Consuelo Callahan took strong exception to the ruling. “I dissent because the majority misreads the factual record, departs from controlling precedent and the positions taken by our sister circuits, and proposes a premise on which any defendant sentenced under the pre- Booker guidelines may seek to be resentenced,” she wrote. Bryan’s comments, she wrote, indicate the trial judge was opposed to “mandatory guidelines as such,” rather than anything specific about either of the cases at hand. By construing Bryan’s comments as extraordinary, she wrote, “the majority improperly expands the definition of ‘extraordinary circumstances’ to a point at which it could be invoked by almost any person sentenced under the mandatory sentencing guidelines.”

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