U.S. v. Carty , No. 05-10200 (3-24-08) (en banc). In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough. Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption. The 9th recognizes that a Guideline sentence will usually be reasonable, but that stating there is a presumption imports "baggage" of an evidentiary nature when, on appeal, and in light of the nonbinding nature of the Guidelines, serves no purpose. The opinion lays out the steps a court should follow, emphasizing the need for correct procedure to be followed by substantive review. the standard is abuse of discretion as to reasonableness. The concurrences are interesting. Kozinski states that the majority adopts a presumption, but is just afraid to call it that. Silverman chides the majority for not adopting a presumption of reasonableness, which he reads the Supremes as permitting. As for the cases, the 9th affirms the sentences on both as reasonable. Still, the opinion is a clear indiction of the tremendous discretion the sentencing court now enjoys. Carty will certainly make the "most-cited" list for the 9th.

Whaley v. Belleque, No. 06-35759 (3-24-08). The state can't have it both ways. In a petition seeking relief from parole, the state (Oregon) moved for dismissal of certain constitutional claims because the petitioner had been reincarcerated, and so the claims were arguably moot. The petitioner then jumped to federal court to present constitutional claims for the underlying conviction. "Wait," said the state, "those claims are unexhausted." The 9th (Reinhardt joined by Smith) hold that the state can't whipsaw the petitioner with those arguments. Invoking judicial estoppel, the 9th sends it back to the district court to resolve the claims on its merits. Hall, dissenting, views the invocation of judicial estoppel as granting any petitioner a free pass to jump to federal court whenever the state convinces a lower state court that there is a procedural default. Hall would force the petitioner to play out the hand on state review.

Congratulations to AFPD Tom hester of the Oregon FPD office (Portland).

U.S. v. Anderson, No. 07-50145 (3-25-08). It never ends. That is the way supervised release seems to defendants, and the 9th (Graber) just adds to that perception. Defendant had suffered several SR revocations of various months (the latest being 90 days). The court imposed 36 months supervision to follow. Defendant appealed, arguing that the term should be the extent of the duration of the revoked term. No such luck. The statute, 3583(e), interprets the 9th, wants the court to help the defendant reintegrate into society, and how could a foreshortened term allow that. Surely Congress and the courts would not give up on "the worst of the worst" (the sanctimonious concern is touching), and so the full term impose after any reimprisonment is permitted both under the statute and the Supremes precedent of Johnson and other circuits. The defendant does get credit for the time he has served against any future imprisonment should the rehabilitation not work out.