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If it made Judge Robert Bryan “sad and a little angry” that Federal Sentencing Guidelines in the 1990s forced him to impose draconian prison terms on two drug defendants, one can only imagine how the judge from the U.S. District Court for the Western District of Washington feels now. The 9th U.S. Circuit Court of Appeals vindicated Bryan’s sentiments in December 2006 when a three-judge panel granted his 2005 request to let him reconsider the two jail terms. The judge had filed his order because the 2005 U.S. Supreme Court case U.S. v. Booker, 543 U.S. 220, had made the sentencing guidelines advisory. “These two cases have weighed particularly hard on Judge Bryan’s conscience eight years and 16 years, respectively, after the original sentences were imposed,” Judge Harry Pregerson wrote in sending the cases back to Bryan. Carrington v. U.S., No. 05-36143, and Tillitz v. U.S., No. 05-36144. Senior Judge John Noonan Jr. concurred but Judge Consuelo Callahan dissented with vehemence. She said that Bryan’s discomfort with the guidelines shouldn’t make the case an exception to the Supreme Court’s decision that Booker is not retroactive. In the end, Callahan won: In a rare move, the 9th Circuit panel withdrew the December opinion. This time, Callahan wrote the opinion and Pregerson the dissent. And Noonan, the swing vote, chimed in with his own concurrence. Callahan wrote that Carrington (sentenced to 27 years in prison in a cocaine case) and Tillitz (sentenced to 30 years for participating in a hashish ring) “have not presented exceptional circumstances sufficient to support a grant of extraordinary relief such as the recall of our prior mandates.” Callahan said that U.S. v. Crawford, 422 F.3rd 1145, a 2005 9th Circuit case on which Pregerson relied in his original opinion, required “extraordinary circumstances” for the court to allow a resentencing, and that these circumstances were not met in Bryan’s cases. In Crawford, Callahan wrote, the 9th Circuit vacated the sentences not only because the sentencing judge had expressed reservations similar to Bryan’s, but also because the 9th Circuit ruling came at an earlier stage in the case, without the years of procedural rulings that preceded Bryan’s request to resentence. “It would be unfair to countless defendants and to numerous judges to base the retroactive application of a Supreme Court opinion on the degree to which a trial judge grumbled while enforcing the extant law,” she wrote. Her interpretation of Crawford irked Pregerson. By focusing on the timing issue, he wrote, “Judge Callahan chooses to adopt an unduly crabbed reading of the case. While I recognize that the passage of time has somewhat cemented the government’s interest in finality, that interest is still not so strong that I would deny a district court judge the opportunity to remedy what the judge considers to be an ‘injustice’ and to resentence defendant to a sentence that is just, proper and constitutional,” he said. In his concurrence, Noonan said that it is up to the U.S. Supreme Court to decide what is constitutional at any given time. Since the sentencing guidelines were considered constitutional through the 1990s, he wrote, sentences handed down under their direction remain constitutional now. In the end, “only the Supreme Court has both the power and the authority to create a rule of retroactivity when a new rule of constitutional law, if applied retroactively, would lessen the penalty given.” But Noonan couldn’t entirely pull himself away from Pregerson. “The strength of Judge Pregerson’s position must be acknowledged. It is humane, and humaneness is a necessary quality in humans who are judges. The panel has the power to do what he asks. The panel does not have the authority.”

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