Mixmaster Alarcon: Ninth Revisits Troublesome Footnote

On April 1, we observed that a Ninth Circuit panel in United States v. Mix had jumped the gun on an important Booker standard of review. See blog entry here.

We argued:

Second, the opinion claims – without support – that “guideline sentences are reviewed for violations of law and incorrect application of the Guidelines, not reasonableness.” Id. at 3586 at n.2. Appellate review of the “reasonableness” of a guideline sentence is still very much in play, and deserves more than a flat assertion in footnote dicta. If guideline sentences are exempt from “reasonableness” review, then the guidelines have been elevated to becoming presumptively reasonable. When the Ninth gives that much deference, it courts another Booker challenge to guidelines which are far more than “advisory.” Moreover, Berzon’s Plouffe panel is now considering the Court’s jurisdiction to consider the reasonableness of a guideline sentence. United States v. Plouffe, 437 F.3d 917 (9th Cir. Feb. 13, 2006), ord. (requesting briefing). Mix jumps the gun; Plouffe was first in line. Footnote two should go, pending Plouffe.

On June 8, 2006, the panel amended the opinion and deleted this footnote:

ORDER

We hereby recall the mandate. The court’s opinion, filed March 30, 2006, is amended as follows:

Footnote 2 at slip op. 3586 that reads:

Pursuant to 18 U.S.C. § 3742(f)(1), guideline sentences are reviewed for violations of law and
incorrect application of the Guidelines, not reasonableness. Pursuant to § 3742(f)(2), departures from the Guidelines are reviewed in several respects, including reasonableness.

is deleted.

See order here.

Small footnote - big issue. Kudos to the Mix panel for pulling footnote two.

Steven Kalar, Senior Litigator N.D. Cal. Fed. P.D. Website available at www.ndcalfpd.org

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