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Judges on the 11th U.S. Circuit Court of Appeals continue to chafe under hundreds of sentencing cases brought about by the U.S. Supreme Court’s January decision that struck down federal sentencing guidelines. Two 11th Circuit judges, Gerald B. Tjoflat and Edward E. Carnes, each issued a special concurrence this week that wrestled with how to handle the high court’s ruling in U.S. v. Booker, 125 S.Ct. 738. The judges, who in April sparred over how to interpret Booker, continued to display different approaches to dealing with more than 1,000 lower court decisions made after the Supreme Court’s decision that the guidelines are advisory, not mandatory. Tjoflat voiced his opinion in the case in which the 11th Circuit vacated the 78-month sentence of a Florida man convicted of a handgun violation. Tjoflat wrote separately to address prosecutors’ arguments that the sentencing error did not harm the defendant because the judge didn’t impose a harsher penalty than was standard for the crime. “We can do nothing but guess” how the judge would have sentenced the man, wrote Tjoflat on Tuesday in U.S. v. Glover, No. 04-16745. On the other hand, Carnes on Wednesday offered a plan for district court judges “to minimize pointless reversals and unnecessary do-overs of sentencing proceedings” that have become routine since federal law changed in January. “Therein runs a thread of madness through the method now in place,” Carnes wrote. “There is, however, something that the district courts can do.” If district judges put on paper that an error will not change the punishment, Carnes said, the 11th Circuit can stop vacating cases for redundant resentencing. Carnes wrote the concurrence in the case of Carlos Deon Williams, who is serving eight years after pleading guilty to a federal firearms charge in 2004. Williams appealed his sentence, and a three-judge appeals panel on Wednesday vacated his sentence because a federal judge in the Middle District of Alabama misapplied federal sentencing guidelines. However, Carnes pointed out, the judge may now follow the guidelines and give Williams the exact same sentence — eight years — and Williams may appeal again. U.S. v. Williams, No. 05-11318. Carnes said that it’s a challenge to apply federal law for sentencing, “some provisions of which are mind-numbingly complex and others of which are just mind-numbing.” He likened the complexity of sentencing rules to a “sword dance” and said, “Its steps can be intricate and the music unrelenting.” Many missteps must be fixed by the appeals courts, Carnes said, but the court does unnecessary work if the misstep really doesn’t alter a defendant’s sentence. “The Supreme Court and this court have long recognized that it is not necessary to decide guidelines cases or remand cases for new sentence proceedings where the guidelines’ error, if any, did not affect the sentence,” Carnes said. To drive home his point, Carnes used Williams’ case as an example. U.S. District Judge William H. Steele could have mentioned in sentencing Williams that an error in interpreting sentencing rules would not change Williams’ sentence. “We would not have to send this case back,” Carnes wrote. “We could and would have affirmed.” The 11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search. The attorney for Williams, Kristen L. Gartman Rogers of the federal public defender program in Mobile, said she found Carnes’ ruling “troubling.” “Even though Judge Carnes says he’s speaking for himself,” Rogers said, “I believe his concurrence expresses that the court is not taking the post- Booker appellate review process seriously. I’m going to have a hard time explaining this concurrence to my client.” In April, Carnes and Tjoflat clashed over Booker in another case. Carnes wrote for a three-judge panel that a convicted drug dealer could not prove his sentence would have been different without mandatory guidelines. U.S. v. Rodriguez, 389 F.3d 1291. Although a majority of the 12-judge circuit voted not to rehear the Rodriguez case, Tjoflat criticized Carnes’ approach in a dissent, saying Carnes will make applying Booker “a meaningless formality in all but the rarest of cases.” Carnes’ rejoinder came in a 43-page opinion. Carnes wrote that Tjoflat’s conclusion “requires not just a set of reading glasses but also a vivid imagination.”

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