Friday, February 18, 2005

U.S. v. Ruiz-Alonso

US v. Ruiz-Alonso, No. 03-50125 (2-11-05). Defendant got a four level departure in a 1326 case for cultural assimilation. He still got sentenced to 46 mos. The gov’t wasn’t happy with this and so appealed. They were so unhappy that they appealed without getting the approval of the Attorney General, the SG, or a deputy SG. Moreover, not only didn’t they get approval, they didn’t get “personal approval.” Why is this important? Well, 18 USC 3742(b) explicitly states, and it wasn’t excised in Booker, that for a gov’t appeal, the “personal approval” has to be given by the aforementioned persons. Sounds like a bright line. Well, it may be bright, but it isn’t jurisdictional. The statute, again, is merely aspirational; the 9th won’t treat it as a jurisdictional requirement because, well, Congress really didn’t mean it to be that strict, and besides, one can get approval afterwards, and the clock is ticking, and oh yes, it is a housekeeping DOJ matter. The 9th joins six other circuits in this approach, and rejects the analogy to a COA. As for the departure itself, the 9th humpfs that it has jurisdiction, and then vacates in light of Booker.


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