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Senior Judge James C. Hill of the 11th U.S. Circuit Court of Appeals complained last week that his court’s adherence to precedent came at the expense of upholding “erroneous” prison sentences and deepening a split between the 11th Circuit and other federal appeals courts. Hill, 81, was a reluctant member of a three-judge panel that rejected claims by Luis Adel Bordon and his two sons, who were convicted of illegal gambling and money laundering. Sentenced to more than six years in prison each, the men had argued that a recent Supreme Court ruling that struck down federal sentencing guidelines authorized new sentences for them. The problem was one of timing. In their appeal briefs, the Bordons’ lawyers did not refer to the high court’s January ruling in U.S. v. Booker, 125 S.Ct. 738, because the decision came out after the briefs were filed. The lawyer cited Booker in a supplemental filing and at oral arguments, but that was not enough to satisfy the panel. Hill joined Judges R. Lanier Anderson III and William H. Pryor Jr. in finding that Booker was irrelevant to the case as a result of a long-standing 11th Circuit precedent stating “that issues and contentions not timely raised in the briefs are deemed abandoned.” U.S. v. Bordon, No. 04-10654 (11th Cir. Aug. 25, 2005). Hill issued a separate concurrence pointing out that 11th Circuit case law put the Bordons in an impossible position: “The Bordons should have claimed relief under Booker — before Booker was decided! For this precedent I am sorry. “Stare decisis is an important doctrine,” added Hill. “But I trust that, from time to time, it might be tempered with fiat justitia ruat coelum.” (The last four words, from Latin, mean “Let justice be done though the heavens may fall” and are the motto of the Supreme Court of Georgia.) Contrasting the 11th Circuit with other appeals courts that have allowed broader application of Booker, Hill wrote, “I should like to think that a court would want to correct an erroneous sentencing of incarceration — if an efficient and prudential method could be devised to do so. We must feel that we cannot. Yet, the other circuits in this country seem to be doing so — and surviving!” The attorneys representing the Bordons could not be reached for comment. They are J. David Bogenschutz of Bogenschutz & Dutko in Fort Lauderdale, Fla.; Benedict P. Kuehne of Sale & Kuehne in Miami; and Benson B. Weintraub, a sole practitioner in Fort Lauderdale. The U.S. Attorney’s Office in Miami was closed on Thursday and Friday due to Hurricane Katrina, and no one from the office could be reached for comment on Monday. Representing the federal government were Lawrence D. LaVecchio, Anne R. Schultz and Eduardo I. Sanchez. Stephanie Kearns, executive director of the federal public defender’s office in Atlanta, said the 11th Circuit’s different stance from other courts makes it difficult for some of her office’s clients to understand why they are being sentenced differently than defendants elsewhere in the country. Kearns said the result is a client may appear before the 11th Circuit, then serve time somewhere like Texas, where “his cellmate is getting the benefit of a post-conviction claim and he’s not.” Kearns said of the 11th Circuit, “They use their procedural rules to block anyone from availing themselves from changes in the law,” including changes made by the Supreme Court. “It’s just not fair,” she said. QUESTIONING PRECEDENT Hill’s concurrence noted that he has had reservations about the 11th Circuit’s strict adherence to precedent since at least 1990, when he dissented from the court’s decision in McGinnis v. Ingram Equipment Co., 918 F.2d 1491. That case also involved how the 11th Circuit should handle a change in precedent from the Supreme Court. In McGinnis, Hill criticized the court for creating what he repeatedly called a dilemma for attorneys. He wrote that the circuit’s rules sometimes force attorneys to choose between two equally unattractive options: Attorneys can decline to make a point because it has no legal basis, then lose the chance to take advantage of a change in precedent; or they can make the argument, then risk being sanctioned under court Rule 11 for making a spurious claim. “If you don’t raise every possible claim, you’re doing you’re client a disservice,” Kearns said.

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