Court Citation of Law Blogs Study Updated with 2007 Data

Check out this court citation study which updates Ian Best's orginial work by adding 2007 data. [JH]

July 30, 2007 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

Addendum to Cases Citing Legal Blogs

A few weeks ago I updated my list of cases citing legal blogs here. I noted that there had been 6 additional court cases citing blogs since I first compiled the list here.

   

One of the new cases was United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243, which cited Sentencing Law and Policy twice. However, I missed another blog being cited in the same case. Namely, PrawfsBlawg is cited in two consecutive footnotes. Here is the relevant quote from Kandirakis: 

“The notion that a defendant’s sentence is based upon his ‘real offense’ . . . begs the question: ‘real’ according to whom, and according to what standard.” Darmer, supra, at 544. In truth, “real conduct” sentencing as embodied in the Guidelines, is simply punishment for acts not constitutionally proven. n42 The system relies on “findings” that rest on “a mishmash of data[,] including blatantly self-serving hearsay largely served up by the Department [of Justice].” Green, 346 F. Supp. 2d at 280. n43

n42 Dan Markel, “The Indispensable Berman on Booker”, June 26, 2006, PrawfsBlawg, at  https://prawfsblawg.blogs.com/ prawfsblawg/2006/06/the_indispensab.html (“For what is real conduct in a regime in which the Founders sought the use of juries except conduct that has either been admitted to or been included in the indictment and proved to be ‘real’ beyond a reasonable doubt by a jury of one’s peers?”).

n43 Dan Markel, supra note 42 (“[W]hat makes the Booker remedy fundamentally untenable is that it continues to provide safe harbor for the imaginative fantasies of what really occurred under the rubric of real conduct.”); see also Booker, 543 U.S. at 304 (Scalia, J., dissenting in part) (relating that judges “determine ‘real conduct’ on the basis of bureaucratically prepared, hearsay-riddled presentence reports”); Blakely, 542 U.S. at 312 (addressing the unfairness of basing a defendant’s sentence “on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong”). …

      

United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243 (D. Mass. 2006)

I am inclined to consider these footnotes as two separate citations. This means that there are now 34 citations of legal blogs from 27 different cases, with 9 legal blogs being cited.

      

If readers learn of any other case citations of legal blogs that are missing from this collection, please add them in the comments.

September 29, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

Cases Citing Legal Blogs - Updated List

This is a collection of court cases that cite legal blogs. It is an update to this previous list, which included quotations from the cases. Since April 15, 2006, when that list was first posted, there have been 6 additional court cases citing legal blogs. Those are named and quoted in these two posts. At the time of this current post (August 6, 2006), there are 32 citations of legal blogs from 27 different cases, with 8 legal blogs being cited.

      

Crime and Federalism – 1 citation

  1. Priester v. Rich, 2006 U.S. Dist. LEXIS 36831, *11 n4 (D. Ga. 2006) – citation to commentary on blog

De Novo - 1 citation

  1. United States v. Scott, 450 F.3d 863, 894 n5 (9th Cir. 2006) – citation to commentary on blog

How Appealing – 1 citation

  1. Kennedy v. Lockyer, 379 F.3d 1041, 1065 (9th Cir. 2004) – citation to interview on blog

Legal Theory Blog – 1 citation

  1. Brasher’s Cascade Auto Auction v. Valley Auto Sales & Leasing, 119 Cal. App. 4th 1038, 1057 (Cal. Ct. App. 2004) – citation to lexicon on blog

Patently-O – 1 citation

  1. Collaboration Props. v. Tandberg ASA, 2006 U.S. Dist. LEXIS 43930, *11 (D. Cal. 2006) – citation to document on blog

Sentencing Law and Policy – 24 citations in 19 cases

  1. United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting) – citation to document on blog
  2. United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004) – citation to blog generally 
  3. United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004); Ameline, 376 F.3d at 986 (Gould, J., dissenting) – 2 citations by majority to articles on blog, 1 citation by dissent to blog generally
  4. United States v. Cage, 451 F.3d 585, *26 n5 (10th Cir. 2006) – citation to commentary on blog
  5. United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (Tjoflat, J., dissenting) – citation to commentary on blog
  6. United States v. Levy, 391 F.3d 1327, 1341 (11th Cir. 2004) (Tjoflat, J., dissenting) – citation to commentary on blog
  7. United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006) – 1 citation to blog generally, 1 citation to commentary on blog
  8. United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243, *3 n4 (D. Mass. 2006); Kandirakis, *44 n36 – 1 citation to document on blog, 1 citation to blog generally (but referring to analysis)
  9. United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005) – citation to commentary on blog
  10. United States v. Khan, 325 F. Supp. 2d 218, 223 (D. N.Y. 2004) – citation to blog generally
  11. United States v. Onunwor, Order NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004) – citation to court order quoted on blog
  12. United States v. Phelps, 366 F. Supp. 2d 580, 584 (D. Tenn. 2005) – citation to document on blog
  13. United States v. Croxford, 324 F. Supp. 2d 1255, 1261 (D. Utah 2004) – citation to article on blog 
  14. United States v. Wilson (Feb. 2, 2005), 355 F. Supp. 2d 1269, 1271, 1286 (D. Utah 2005) – 1 citation to document on blog, 1 citation to commentary on blog
  15. United States v. Wilson (Jan. 12, 2005), 350 F. Supp. 2d 910, 922 (D. Utah 2005) – citation to commentary on blog
  16. United States v. Johnson, 333 F. Supp. 2d 573, 577 (D. W. Va. 2004) – citation to commentary on blog
  17. United States v. Greer, 375 F. Supp. 2d 790, 795 (D. Wis. 2005) – citation to announcement on blog
  18. Smylie v. State, 823 N.E.2d 679, 687 (Ind. 2005) – citation to commentary on blog
  19. State v. Foster, 2006 Ohio 856, P8 (Ohio 2006) – citation to blog generally 

The UCL Practitioner – 1 citation

  1. Tsukroff v. Hedgeside Property & Inv. Co., California Superior Court, Napa County, case no. 26-25117 (order dated 01/19/05) (unpublished) – citation to collection of court orders and appellate briefs on blog

The Volokh Conspiracy – 2 citations

  1. Harper v. Poway Unified Sch. Dist., 2006 U.S. App. LEXIS 19164, *6 (9th Cir. 2006) (O’Scannlain, J., dissenting) – citation to commentary on blog
  2. Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004) – citation to song parody on blog

   

* Note: The original list named the Ameline case twice, because it cites Sentencing Law and Policy in the majority and the dissent. Ameline is now listed once instead of twice. The original list also included the case of Batzel v. Smith, 351 F.3d 904, 906 (9th Cir. 2003). Batzel is not included in this updated list because it merely names examples of "popular and respected legal blogs" without citing any one as an authority. Those blogs are How Appealing (new URL), SCOTUSBlog, The Volokh Conspiracy, and Lessig Blog.

August 6, 2006 in Cases Citing Legal Blogs | Permalink | Comments (3) | TrackBack

And Two More Cases...

In addition to the four cases here, there are two more cases citing legal blogs. They are:

1. Collaboration Props. v. Tandberg ASA, 2006 U.S. Dist. LEXIS 43930, *11 (D. Cal. 2006)

A proposed amendment to the Patent Reform Act of 2005, which is currently pending before Congress in its original form, would eliminate venue based solely on the availability of personal jurisdiction. See Amendment in the Nature of a Substitute to H.R. 2795 (Patent Reform Act of 2005), available at https://patentlaw.typepad.com/patent/2005/08/patent_reform_a.html.

2. Priester v. Rich, 2006 U.S. Dist. LEXIS 36831, *11 n4 (D. Ga. 2006)

A commentator argues:

First, it imposes a de facto 5-day statute of limitations on prisoner civil rights claims, even though under 42 U.S.C. Section 1988, the statute of limitations for civil rights actions is supposed to mirror the state's general personal injury statute of limitations. In Georgia, the relevant statute of limitations should have been two years. Under the Eleventh Circuit's reading of thePLRA, the statute of limitations for prison civil rights suit is 5 days. This disparate treatment of regular civil rights suits vs. prisoner civil rights suit is intolerable, and it is not required or even suggested by the PLRA's text, history, or structure.

Second, the Eleventh Circuit's reading of the PLRA allows potentially different limitations periods in every prison. Federal law, to the extent possible, should be uniform. By allowing each prison to set a different exhaustion deadline, there could potentially be as much disconformity as there are prisons.

https://federalism.typepad.com/crime_federalism/woodford_v_ngo/
index.html
(site as of 4/3/06).

August 6, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

Four New Cases Citing Legal Blogs

Three months ago I posted a collection of 23 court opinions which cite legal blogs. Since then there have been four more examples, which are listed below. These cases will be added to the “official” collection (the prior list) soon. Each case below is followed by the quote containing the blog citation, and some additional commentary.

    

The first two cases cite Sentencing Law and Policy, and the third case cites The Volokh Conspiracy. Most significantly, the fourth case cites De Novo, which is the first law student blog ever to be cited in a court opinion.  

   

1. United States v. Cage, 451 F.3d 585, *26 n5 (10th Cir. 2006) 

“According to a leading academic chronicler of sentencing decisions, "it seems all post-Booker within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable." Professor Douglas A. Berman, Sorting Through the Circuit Circus, Sentencing Law and Policy, at https://sentencing.typepad.com/sentencing_law_and_policy/2006/04/
tracking_reason.html
(April 28, 2006).”   
    

    

The Cage opinion was further discussed by Prof. Doug Berman here and here. The original blog post cited by the Cage opinion has also been updated (here). This demonstrates that once a court opinion cites to a blog, the post being cited can be updated and revised, and the blog can comment further on the case. Interestingly, the blog post cited in Cage is a collection of previous posts discussing  (and usually linking to) other court opinions.

    

2. United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243, *3 n4 (D. Mass. 2006); Kandirakis, *44 n36 

“…see also Letter from Jon M. Sands, Federal Public Defender, to Hon. Ricardo Hinojosa, Chair, U.S. Sentencing Commission (July 19, 2006), Memorandum at 1 ("The Commission should not continue to recommend minimal constitutional protections."), available at https://sentencing.typepad.com/
sentencing_law_and_policy/files/defender_letter_to_ussc_71906.pdf
.”

    

“Though the presumption is purportedly rebuttable, as of July 31, 2006, the Sentencing Law and Policy Blog kept by Professor Douglas A. Berman of The Ohio State University Moritz College of Law (https://www.sentencing.typepad.com), and which reports in near-realtime on Booker and other sentencing issues, had noted only a single case in which a within-Guidelines sentence was reversed as unreasonable.”   

    

The Kandirakis opinion was further discussed on Sentencing Law and Policy here. Then, in a follow-up post, Prof. Berman linked to an analysis of Kandirakis at the Ninth Circuit Blog here. Once a court cites to a legal blog, that same blog can 1) discuss the case in a new post and 2) link to other blogs which are analyzing the case. By citing a legal blog, the court potentially joins itself to (and directs readers to) any subsequent analysis of the case on that same blog and in the legal blogosphere as a whole.

    

3. Harper v. Poway Unified Sch. Dist., 2006 U.S. App. LEXIS 19164, *6 (9th Cir. 2006)

“A respected First Amendment scholar notes that the panel majority’s decision constitutes

a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.

Eugene Volokh, Sorry, Your Viewpoint Is Excluded from First Amendment Protection, April 20, 2006, https://volokh.com/posts/1145577196.shtml.” 

    

The Harper opinion was further discussed by Prof. Volokh here. As already mentioned, legal blogging allows for post-citation commentary about the very case that cited the blog. Furthermore, a blog can enable interested readers to discuss the opinion in the comments. At the time of this (3L Epiphany) blog post, the post at the Volokh Conspiracy discussing Harper has 45 comments. The original post, the one cited by the Harper dissent (from the denial of rehearing en banc), now has 258 comments. A court citation to a legal blog thus allows readers of the blog to discuss the decision both on the original (cited) post and in subsequent posts about the case.

    

4. United States v. Scott, 450 F.3d 863, 894 n5 (9th Cir. 2006) 

“Judge Bybee's foresight has been echoed by the defense bar, noting that even though the majority is attempting to protect "the ideal espoused in our legal system that a citizen is innocent until proven guilty, . . . it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial." https://www.blogdenovo.org/archives/001073.html  (last accessed June 1, 2006).”   

    

The Scott decision is the first court case to cite a law student blog. (One arguable contender would be Jason Hernandez's "Blakely Blog" cited in Smylie v. State, but the context makes it clear that the judge was referring to Sentencing Law and Policy.)  De Novo is a law student group blog. Sean Sirrine authored the post that was cited in Scott while he was a 1L, but the court mistakenly characterized him as a member of the "defense bar." The original blog post cited now contains a correction of the error by "PG," another De Novo blogger. For an appellate court to cite a 1L's blog post (written before journal membership is even possible) is a remarkable event. The Scott citation is further discussed at the Volokh Conspiracy here.

August 3, 2006 in Cases Citing Legal Blogs | Permalink | Comments (1) | TrackBack

Cases Citing Legal Blogs

[Update: This post has now been revised and updated here.]

    

This is a collection of cases that cite legal blogs. The cases are listed below, and each case name is hyperlinked to a blog post containing 1) the excerpt with the blog citation, and 2) additional commentary. The URL's for the blog citations are active, and will bring the reader to the original online source.

    

The blog with the most case citations is Sentencing Law and Policy, with 21 citations in 17 cases. (Note that the majority and dissenting opinions in Ameline are posted separately; thus SLP is cited in cases #1-18.) Three other well-known legal blogs are represented, each being cited once: Legal Theory Blog for its archived lexicon, in Brasher's Cascade Auto Auction (case #19); The Volokh Conspiracy for a song parody, in Suboh v. Borgioli (case #20); and How Appealing for a reference to its "20 Questions" series, in Kennedy v. Lockyer (case #21).

    

The case of Batzel v. Smith (case #22) does not cite any legal blog as an authority, but instead names four examples of "popular and respected legal blogs": How Appealing, SCOTUSBlog, The Volokh Conspiracy, and Lessig Blog. It also names Instapundit as an example of a political blog. The final, unpublished case, Tsukroff v. Hedgeside Property & Inv. Co. (case #23) cites a California blog, The UCL Practitioner, for its collection of trial court orders and appellate briefs.

    

Cases Citing Legal Blogs

  1. United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting)
  2. United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004)
  3. United States v. Ameline (majority), 376 F.3d 967, 978 (9th Cir. 2004)
  4. United States v. Ameline (dissent), 376 F.3d 967, 986 (9th Cir. 2004) (Gould, J., dissenting)
  5. United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (Tjoflat, J., dissenting)
  6. United States v. Levy, 391 F.3d 1327, 1341 (11th Cir. 2004) (Tjoflat, J., dissenting)
  7. United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006)
  8. United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005)
  9. United States v. Khan, 325 F. Supp. 2d 218, 223 (D. N.Y. 2004)
  10. United States v. Onunwor, Order NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004)
  11. United States v. Phelps, 366 F. Supp. 2d 580, 584 (D. Tenn. 2005)
  12. United States v. Croxford, 324 F. Supp. 2d 1255, 1261 (D. Utah 2004)
  13. United States v. Wilson (Feb. 2, 2005), 355 F. Supp. 2d 1269, 1271, 1286 (D. Utah 2005)
  14. United States v. Wilson (Jan. 12, 2005), 350 F. Supp. 2d 910, 922 (D. Utah 2005)
  15. United States v. Johnson, 333 F. Supp. 2d 573, 577 (D. W. Va. 2004)
  16. United States v. Greer, 375 F. Supp. 2d 790, 795 (D. Wis. 2005)
  17. Smylie v. State, 823 N.E.2d 679, 687 (Ind. 2005)
  18. State v. Foster, 2006 Ohio 856, P8 (Ohio 2006)
  19. Brasher’s Cascade Auto Auction v. Valley Auto Sales & Leasing, 119 Cal. App. 4th 1038, 1057 (Cal. Ct. App. 2004)
  20. Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004)
  21. Kennedy v. Lockyer, 379 F.3d 1041, 1065 (9th Cir. 2004)
  22. Batzel v. Smith, 351 F.3d 904, 906 (9th Cir. 2003)
  23. Tsukroff v. Hedgeside Property & Inv. Co., California Superior Court, Napa County, case no. 26-25117 (order dated 01/19/05) (unpublished)

April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (4) | TrackBack

United States v. Booker

n4  Memorandum from Christopher A. Wray, Assistant Attorney General, U. S. Department of Justice, Criminal Division, to All Federal Prosecutors, re: Guidance Regarding the Application of Blakely v Washington, to Pending Cases, p 8, available at http://sentencing.typepad.com/sentencing_law_and_policy/
files/chris_wray_doj_memo.pdf
 
(hereinafter Application of Blakely); see also Brief for National Association of Federal Defenders as Amicus Curiae 9-12.

United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting)

    

    

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Penaranda

n9 Many techniques currently being implemented by district judges in the aftermath of Blakely can be found on the Internet at Sentencing Law and Policy, at <https://sentencing.typepad.com> (last visited July 12, 2004; copy available in Court of Appeals' file).

United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004)

     

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Ameline (majority)

Edwards did not argue that the Guidelines sentencing scheme violated his Sixth Amendment right to a jury trial; indeed, Edwards presumed that had the jury identified whether cocaine or cocaine base was the object of the conspiracy, the district court could have properly determined the quantity of the identified drug at sentencing consistent with the Sixth Amendment. "The Court did not opine on the guidelines' consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment challenge to the guidelines because there was no Sixth Amendment challenge to the guidelines. We are obligated therefore to make our own constitutional determination." Booker, 2004 U.S. App. LEXIS 14223, 2004 WL 1535858, at *5. n13

n13 The flood of post-Blakely scholarship supports this conclusion. See, e.g., Nancy J. King & Susan R. Klein, Beyond Blakely, 16 Fed. Sentencing Rep. __, n.21 (forthcoming June 2004) (available at https://sentencing.typepad.com/
sentencing_law_and_policy/files/kingklein_beyond_blakely.pdf
) ("We agree with Judge Posner on this point."); Stephanos Bibas, Blakely's Federal Aftermath, 16 Fed. Sentencing Rep. __, 6 (forthcoming June 2004) (available at https://sentencing.typepad.com/sentencing_law_and_policy/files/
bibas_blakelys_federal_aftermath.pdf
) ("Because Edwards did not squarely resolve a Blakely challenge, lower courts are not bound to reject Blakely challenges to the Guidelines.").
United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004)
   

    

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Ameline (dissent)

n4 For a "blog" on the internet cataloguing in detail recent developments relating to Blakely, see "Sentencing Law and Policy" at https://sentencing.
typepad.com
, a website of Professor Douglas A. Berman of the Moritz College of Law at The Ohio State University.
United States v. Ameline, 376 F.3d 967, 986 (9th Cir. 2004) (Gould, J., dissenting)

     

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Rodriguez

At the outset, it is important to understand that there are two different types of Booker error: "there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on  facts not admitted by the defendant or proved to a jury beyond a reasonable doubt," and there is "a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory." Douglas A. Berman, Sorting through the Circuit circus, Sentencing Law and Policy, at https://sentencing.typepad.com/sentencing_law_and_policy/
2005/02/sorting_through.html
(Feb. 14, 2005). "Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory . . . ." Id.
United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (
Tjoflat, J., dissenting)

     

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Levy

“Perhaps Ardley and Levy are only an attempt to limit the impact of the Supreme Court's recent watershed sentencing decisions. See Douglas A. Berman, Do-overs?, Sentencing Law and Policy, Aug. 4, 2004, at https://sentencing.typepad.com/sentencing_law_and_policy/2004/08/
doovers.html
(noting that "the potential number of sentencing 'do-overs' after Blakely is mind-boggling" and citing Levy as "evidence that lower courts are going to resist 'do-overs' however they can").”
United States v. Levy, 391 F.3d 1327, 1341 (11th Cir. 2004) (
Tjoflat, J., dissenting)

    

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Valencia-Aguirre

n17 Immediately after issuance of Pho, Professor Douglas Berman published commentary at "Sentencing Law and Policy," https://sentencing.typepad.com, an excellent and provocative forum widely consulted for current and trenchant analysis of sentencing issues. Professor Berman states as part of his January 6th commentary that:

The Pho opinion elevates the perceived intent of Congress over the plain text of 18 U.S.C. § 3553(a), which the Booker Court identified as the guide for district court sentencing decisions and for circuit court review of whether a sentence is reasonable. (Where is a textualist like Justice Scalia when we need him?) https://sentencing.typepad.com/sentencing_law_and_policy/2006/
01/whats_wrong_wit.html
.
 

   

Pho requires a district judge to conform to the Sentencing Guidelines' notorious 100:1 equivalency ratio between crack and powder cocaine; Professor Berman points to the aspirational language of 18 U.S.C. § 3553(a) as empowering a district judge to alter an unreasonable guidelines provision (the 100:1 ratio particularly). Although Professor Berman's desire to ameliorate the consequences of the 100:1 ratio is entirely wholesome, Congress's more particular and immanent statutory creation of a Sentencing Commission with the authority (indeed, the duty) to promulgate regulations conforms to a pattern familiar in modern government: primary interpretation of a statute entrusted to an agency empowered to promulgate interpretive regulations. The Sentencing Commission is admittedly singular in many respects, but the interposition of a mediating authority between the district judge and the "vague" and "hopelessly open-ended" (see Judge Posner in Dean) provisions of Section 3553(a) provides a mechanism necessary to avoid a cacophonous report from the field of sentencing judges.

United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006)

    

   

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Bailey

This caused one bright professor to become "puzzled" since, so he suggests, I apparently ignore a portion of a statute that Congress wrote and I am otherwise big on listening to Congress. See Douglas A. Berman, A punchy, though puzzling, perspective on parsimony (Apr. 19, 2005), available at https://sentencing.typepad.com/sentencing_law_and_policy/2005/week16/
index.html
. The answer to the professor's (mock?) perplexity, is that, using my Booker discretion, I would read the "parsimony" provision with the Guidelines heavily in mind, and he, and others who abhor Congress' harshness, would read the "parsimony" provision without the Guidelines much in mind. Tell me, honestly, dear readers, which discretionary approach is more consistent with (1) what Congress and the Commission intended, (2) how statutes (as a whole) are to be construed, (3) the remedy chosen by the Supreme Court in Booker, and (4) the proper role of federal judges under Article III? If you pick Doug Berman's view, then, as Emily Litella used to say, "never mind."
United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005)

    

Note: The blog post cited in the case, "A punchy, though puzzling, perspective on parsimony," is at the following URL: https://sentencing.typepad.com/
sentencing_law_and_policy/2005/04/a_punchy_though.html
. 

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Khan

Partly as a result of Blakely, a number of judges have declared the Guidelines dead. … See generally Sentencing Law and Policy, at https://sentencing.
typepad.com
(July 12, 2004).
United States v. Khan, 325 F. Supp. 2d 218, 223 (D. N.Y. 2004)

    

Note: It is not clear which blog post the case is referring to, but the archives from July 12, 2004 can be found here (scroll down): https://sentencing.typepad.
com/sentencing_law_and_policy/2004/week29/index.html
.
  The date in the case might also mean "last visited."

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Onunwor

Because the Court cannot locate an official opinion published on this case, it presumes accurate the following order, as quoted on the Sentencing Law and Policy weblog:

We hold, with a formal opinion and dissenting opinion to follow, that the decision of the U.S. Supreme Court in Blakely v. Washington, 124 S. Ct. 2531(2004), does not invalidate the appellant's sentence under the federal Sentencing Guidelines. Accordingly, the district courts within the Sixth Circuit are hereby instructed to continue sentencing defendants in accordance with the Guidelines, as they did prior to Blakely. In the interest of judicial economy, and pending a definitive ruling by the Supreme Court, we recommend that the district courts within this circuit also announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. Sec.3553(a) (West 2000 & Supp.2004), treating the Guidelines as advisory only.

Douglas A. Berman, "I'm Home . . . and Grumpy about the Sixth Circuit," Sentencing Law and Policy, Aug. 14, 2004, available at https://sentencing.
typepad.com/sentencing_law_and_policy/2004/08/im_home_and_gru.html
. Order in United States v. Onunwor, NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004)   

   

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April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Phelps

For this reason, some district courts are issuing written opinions in connection with those cases that come before them for sentencing. See e.g., United States v. Jaber, 362 F. Supp. 2d 365 (D. Mass. 2005), available at https://sentencing.
typepad.com/sentencing_law_and_policy/files/gertner_jabarmomohsenten
memo.pdf
.

United States v. Phelps, 366 F. Supp. 2d 580, 584 (D. Tenn. 2005)

     

      

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United States v. Croxford

n33 See generally Nancy J. King & Susan R. Klein, Beyond Blakely, -- FED. SENTENCING RPRT. -- (forthcoming special issue) (draft article available on Professor Berman's helpful website https://sentencing.typepad.com).
United States v. Croxford, 324 F. Supp. 2d 1255, 1261 (D. Utah 2004)

    

    

Note: The article referred to in the case, "Beyond Blakely," by Professors King and Klein, is posted at the following URL: https://sentencing.typepad.com/
sentencing_law_and_policy/2004/07/beyond_blakely.html
.
   

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United States v. Wilson (Feb. 2, 2005)

…see also United States v. Jose Huerta-Rodriguez; 355 F. Supp. 2d 1019, 2005 U.S. Dist. LEXIS 1398, No. 8:04CR365 (D. Neb. Feb. 1, 2005), available at https://sentencing.typepad.com/sentencing_law_and_policy/files/judge_
bataillon_huerta_ruling.pdf
. (last visited Feb. 2, 2005).

United States v. Wilson, 355 F. Supp. 2d 1269, 1271 (D. Utah 2005)

Unless a district court is clear about how it arrived at a sentence - "showing its work" as one respected commentator colorfully put it n106 - that data collection process will be aborted.

n106 https://sentencing.typepad.com/sentencing_law_and_policy/2005/01/
always_remember.html
.

Wilson, 355 F. Supp. 2d at 1286 (D. Utah 2005)   

    

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United States v. Wilson (Jan. 12, 2005)

One possible reason for avoiding a Guidelines sentence might be the so-called "parsimony provision," which provides that "the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in [the Sentencing Reform Act]." n62 It is possible to argue that this provision requires the courts to impose sentences below the Guidelines range, because Guidelines sentences are not parsimonious. n63 This is an interesting argument worthy of discussion.

n62 18 U.S.C. 3553(a) (emphasis added).
n63 See https://sentencing.typepad.com/sentencing_law_and_policy (Jan. 12, 2005) (The Power of Parsimony (and Justice Breyer's Notable Omission)) (Prof. Douglas Berman tentatively advancing this suggestion).
United States v. Wilson, 350 F. Supp. 2d 910, 922 (D. Utah 2005)

   

Note: The URL for the specific post referred to in the case, "The Power of Parsimony (and Justice Breyer's Notable Omission)," is: https://sentencing.typepad.com/sentencing_law_and_policy/2005/01/
the_power_of_pa.html
 

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