Supplemental Jurisdiction

Random Observation from a Trip to Starbucks

Those posters at Starbucks for Paul McCartney's new album look like Paul McCartney doing an impression of Dana Carvey doing an impression of Paul McCartney.

(The only clip I could find of Carvey doing his impression is this bit from The Dana Carvey Show. It is mildly amusing.)

Criminal Friday

Criminal Friday has been a long-time commin'.

Today's case is United States v. Hinton, No. 06-4017 (8th Cir. June 7, 2007). Factually, there isn't anything remarkable about the case, except that it involves a horrible person who was convicted of receipt of child pornography. Unfortunately the opinion does not detail the defendant's ultimate sentence; we can only hope it was for a good long while (although whatever it was, the judge sentenced him near the low end of the Guidelines range).

No, the real point is of this post is to examine Hinton's argument that after Booker, the Guidelines, having become advisory instead of mandatory, are now simply one factor of several a district court must consider under the mandate of 18 U.S.C. § 3553(a). But, because the Eighth Circuit has held that the Guidelines range determined by the district court is "presumptively reasonable," this creates "a disproportionate emphasis" on one of those § 3553(a) factors. Obviously this panel of Eighth Circuit rejects this argument, as it must until the Circuit en banc or the Supreme Court says otherwise.

But, Hinton does raise a valid point, which I think is becoming problematic in many circuits. Under Booker, the test for whether a sentence is appropriate is reasonableness. Reasonableness is governed by § 3553(a). However, prior to considering the factors in § 3553(a), the district court calculates the Guidelines range, because it is still advisory. Many, if not most, circuits have held that this first step, if calculated properly, is the "presumptively reasonable" guidelines range. As long as the district court sentences a defendant in that range, it then only has to go through the motions in considering the other § 3553(a) factors because the circuit court will uphold it. Most circuits, having such a presumption, aren't really going to analyze for reasonableness beyond that once established. I'd say there might, at best, be one or two cases in the entire country where a circuit court held sentence within the Guidelines range to be otherwise unreasonable under § 3553(a).

The result is that appeals courts heavily scrutinize sentences outside of the Guidelines range. The further it gets from the range, the less likely the court is to find it reasonable. Some courts engage in discussion about certain percentages below the calculated range. In my opinion, this reasoning risks being unconstitutional. It is simply creating a new mandatory sentencing Guidelines system, only with a judicially-created broadened range. It is also a system that encourages adhering the old Guidelines. As a result, I don't think much has changed in criminal sentencing after Booker.

(A topic for another day is the fact that most sentences above the range are upheld, no matter how many more months are added, while there is a much narrower acceptable range to go below).

Anyway, also noted by defendant is that the Supreme Court granted cert on this issue in Rita v. United States, on appeal from the Fourth Circuit. (Briefing can be found here.) Although oral arguments were in February the court hasn't come down with a decision yet (probably any Monday now). Next Friday I'll analyze the briefs and give some odds.

I'm not Jewish.

Ok, so I just got back from the library and I saw this video.

Two things I love about it:

1) Henry Winkler
2) This lyric: "When she described her underwear I forgot all the rules my rabbi taught me in the old shul."

Back to the Future

Currently I'm sitting in the same library, at the same table, I sat in while studying for the bar exam. That was exactly two years ago, and I haven't been in this library since, even though it is literally three blocks from my apartment. I'm not really sure why I've never been back. It is a really nice library, with very modern amenities such as wi-fi, laptop plug-ins at every table, a beautiful open plan with windows everywhere, and a coffee bar. In fact, I can see my apartment from where I sit. I think maybe I've never been back because studying for the bar was such a horrible experience that I wanted to distance myself from it as much as possible. Plus, any books I want to read I either borrow from my mom or buy, so I rarely need to go to a library. I mean, if I did read. Usually I just watch Springer and eat Doritos.

But today I need to get a brief done, so I came down here where I could spread out my paperwork and concentrate. So it is exactly like how I found myself exactly two years ago. In the fall I am about to start a new job exactly like the job I was going to start that fall two years ago. And I'm freaking the hell out.

Yeah, so I thought I'd link to some of the random blog entries I wrote while in this library two years ago, bar studying, but I couldn't find any. And that's when I remembered that none of them were any good, just me bitching a lot, so I never transferred them over to the new blog. It's too bad too. Luckily I remember how most of them went:

Ohmygodohmygodohmygodohmygodohmygodohmygodohmygodohmygod. Ohmygodohmygodohmygodohmygodohmygodohmygod. Ohmygodohmygodohmygodohmygodohmygodohmygodohmygodohmygod. Ohmygodohmygodfeesimpledeterminabledueprocessshearsayoutofcourtstatementsusedfortruthofthematter. Ohmygodohmygodohmygodohmygod

Awesome.

HOF

An update to a previous post:

Solid Logic

So, I was listening to the Monica Goodling House Testimony yesterday, when I heard Rep. Steve King, R-Iowa, demonstrate his rock-solid reasoning skills. In trying to defend Ms. Goodling's credentials, he mentioned that Yale College had originally been founded as a reaction to Harvard College no longer being religious enough for some people. He then compared the founding of Regent University, a notorious Christian school, to Yale, stating: "So, I submit that Regent is the successor to Yale which is the successor to Harvard."

Ergo, Regent is just as good as Harvard and Yale. Seriously, I'm about to go all Sherman on the Iowa 5th district.

Ninja Wednesday

If it is a Wednesday, then it must be Ninja Wednesday!

Laziness

So, I've been really lazy about updating the ol' blog roll. I finally got around to doing some of it today:

* Divine Angst got a brand-new domain a couple of months ago. Now you only have to click once to get there.

* I'm not really sure what Inter Alia is, but a couple of weeks ago they posted a review of SJ, which I now reprint in its entirety:

Supplemental Jurisdiction is a semi-anonymous blog written by a lawyer living in a certain Midwestern city. Some of the posts are related to the law, some aren't.

Not the most detailed review (or accurate for that matter; SJ is soooo much more), but whatevs, like I do with women, I'll take whatever I can get. That review deserves a spot on the roll.

* Decision of the Day changed addresses, like, a year ago and I'm finally getting around to updating it. Awesome blog.

* Undercounted Sassy gets on the roll because she praised my ability to correctly spell KeyCite. Just for that, I'm considering proposing to her.

* Just like in real life, Above the Law takes the place of Underneath Their Robes.

* I finally added Law Target. Again. Here's the deal, Essien at LT added SJ a long time ago, even writing me a nice email. Initially I responded by adding his link, but then I started to sort of freak out at his gunner-type tendencies so I took it off. And trust me, the man is gun-tacular. He's a one-man gun show. He should have his own 7-day waiting period. (Must . . . stop . . . gunner jokes . . . now!) Anyway, I've come to realize that his blog is fairly enjoyable and he's pretty interesting, even if gunnerific, so it is overdue that I add him to the list.

Opportunity Knocks

Long-time readers of SJ (if there is such a thing) know I rarely talk about my job, for good reason. Last thing I need is for my coworkers to find out just how much I love Hammertime. So, this post, although about my job, will be necessarily vague, as per usual.

Still, I'd just like to say that I recently accepted a new job that I'm very, very excited about. It won't really last that long, and after it is over, I could end up back at my old job, but for the time being, I'm extremely happy about this opportunity. It is sort of like the job I left last fall, but also different and new. Anyway, I don't actually start it for several months, but it gives me something to look foward to.

Yeah, right, so I guess this post isn't so informative without the juicy details. So it has to be. In any event, I'll leave you with this to make it worth your time:

Ninja Wednesday

The problem with Ninja Wednesday these days it is hard to find new material out there that lives up to the very high standard we've established for Ninja Wednesdays. There is seriously a lot of crap out there. Anyway, if you ever see anything ninja related that you think should be posted, you know how to get in touch with me.