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Judge Edward E. Carnes, who in a 2003 decision revealed a fondness for boxer Roberto Duran, laced up his own gloves this week to defend the 11th U.S. Circuit Court of Appeals’ interpretation of new federal sentencing rules. Earlier this year, Carnes wrote for a three-judge panel that ruled against a convicted drug dealer who claimed his nine-year sentence was unconstitutional as a result of the U.S. Supreme Court’s striking down federal sentencing guidelines. Carnes and the panel rejected the man’s argument, saying he could not prove 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 on Tuesday lashed out at criticism from 11th Circuit colleagues Gerald B. Tjoflat and Rosemary Barkett and Chicago-based 7th Circuit Judge Richard Posner. Carnes wrote that Tjoflat’s conclusion “requires not just a set of reading glasses but also a vivid imagination.” A 1992 appointee of President George H.W. Bush, Carnes dismissed Barkett’s arguments as “cheering on” Tjoflat and “robbing a perfectly good word (‘burden’) of its plain meaning.” 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 January decision in U.S. v. Booker, 125 S.Ct. 738, which struck down federal sentencing guidelines as unconstitutional. In February, Carnes ruled against Vladimir Rodriguez, a Florida man challenging a nine-year sentence he received before Booker was announced. The charge was conspiracy to possess and distribute the drug Ecstasy. Joined by Judge Stanley Marcus and Senior Judge Peter T. Fay, Carnes wrote that Rodriguez had shown no “reasonable probability” that the district court judge would have levied a different sentence had the guidelines not been mandatory but only advisory, as they are now under the Booker ruling. U.S. v. Rodriguez, 389 F.3d 1291. QUESTIONING THE DECISION In a 7th Circuit decision 10 days later, Posner, whom scholars have said is one of the most widely quoted legal writers ever, 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,” wrote Posner in U.S. v. Paladino, 401 F.3d 471. On Tuesday, the 11th Circuit announced that a majority of its 12 judges had voted not to reconsider Carnes’ decision in the Rodriguez case. The court does not identify how each judge voted, but Tjoflat and Barkett publicly dissented, each citing Posner’s decision. Over 34 pages, Tjoflat sets out how he thinks the Booker decision should apply to Rodriguez. In that case, the defendant was convicted by a jury of possessing with the intent to distribute a “detectable amount” of Ecstasy, but was sentenced by a district judge who concluded that Rodriguez’s crimes involved 30,000 Ecstasy tablets. In Booker, the Supreme Court struck down the sentencing guidelines because they authorized — in violation of the Sixth Amendment right to trial by jury — a judge 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 his case for “plain error,” which requires Rodriguez to show that an error occurred, it was “plain,” it affected “substantial rights” and “seriously affects the fairness, integrity or public reputation of judicial proceedings.” 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.” In her 11-page dissent, Barkett called Tjoflat’s argument “extremely persuasive.” She added that she agreed with Carnes that Rodriguez carried the burden of proving a “reasonable probability” that a new sentence under advisory guidelines would have been different from the one levied under mandatory guidelines. But she concluded that Rodriguez met the burden by showing that the guidelines were mandatory and that nothing in the record indicated that the district court would have applied the same or a greater sentence under advisory guidelines. The approach by Carnes and the panel, she added, was “excessively stringent.” 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 non-precedential musings of judges. To emphasize his point, Carnes cited five decisions in which Tjoflat wrote that the court was not bound by dicta. To Barkett, Carnes said her views that Rodriguez’s burden of proof should have been lower amounted to “nothing equals something; the burden is no burden at all.” “The adjective ‘oxymoronic’ does not do justice to this ‘no-burden burden’ concept,” Carnes added. 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, argued Carnes, because it assumed that any case in which the “plain error” standard was used risked having a sentence unallowable by 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. Formerly the chief lawyer for Alabama’s death penalty unit, Carnes has developed a reputation for sharp retorts to opinions with which he disagrees and for a vibrant writing style in general. Carnes wrote a panel decision in 2003 that ruled in favor of the former boxing star Roberto Duran, who was in a dispute over missing boxing memorabilia. Over the course of two and one-half pages, Carnes told how Duran was born into poverty and grew up fighting on the streets where he earned the nickname “Manos de Piedra,” or “Hands of Stone.” Carnes went on to highlight Duran’s lightweight career, in which he won 62 of 63 fights, “which explains why Duran is widely regarded as one of the greatest boxers in that weight category in the history of the sport.” That case was U.S. v. Samaniego, 345 F.3d 1280.

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