Rare Bird Sighting In First Circuit

The Widget:

Court: First Circuit (en banc!)
Judge: Boudin
Subject: Sentencing guidelines
Tone: Different
Importance: 5.0

En banc opinions* are very rare treats. And we get one today in United States v. Vega-Santiago, No. 06-1558.

There’s all kinds of interesting stuff in this opinion. The case is about whether a trial judge must provide notice to the parties before imposing a sentence that is harsher than what’s suggested in the federal sentencing guidelines. Right on page one, you can see that the appellant criminal defendant was able to get the brilliant Walter Dellinger to represent him. He still lost, though.

The issue itself would seem to be addressed by the text of Fed. R. Crim. P. 32(h), which requires notice before the court engages in a “departure” from the sentencing guidelines. The Court, however, says that imposing a harsher sentence is called a “variance” and not a “departure”. In the discussion of the difference between a sentencing “variance” and a sentencing “departure” (pp. 4-5), there isn’t a whole lot of – well, any – caselaw cited. That’s strange.

There’s a dissent from Judge Torruella. He says (p. 14) that “[t]he convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review.” Though your eyes may have glazed over the first time you read it, if you read it again, you’ll see language that’s a bit more acerbic than the usual appellate exposition.

*Opinions where larger panels of federal appellate courts reconsider holdings of three judge appellate panels.