The Ninth Circuit Is Soliciting Briefs in En Banc Sentencing Case:

Rather an unusual order in U.S. v. Canty and U.S. v. Zavala:

The court invites supplemental briefs by the parties addressing some or all of the following questions on the role of the United States Sentencing Guidelines in a district court’s sentencing decision after United States v. Booker, 543 U.S. 220 (2005):

1. Do we have jurisdiction to review appeals of within-Guidelines range sentences?

2. If we have jurisdiction to review within-Guidelines range sentences, are such sentences entitled to a presumption of reasonableness, or should we review such sentences no differently than we review outside-Guidelines range sentences? If within-Guidelines range sentences are entitled to a presumption of reasonableness, is this presumption conclusive? Rebuttable? If rebuttable, how can such a presumption be rebutted?

3. How should we review a post-Booker sentence for reasonableness? Do we review only whether the district court complied with Booker’s mandate to consider the 18 U.S.C. § 3553(a) factors? If so, is this review de novo? Do we independently review the sentence imposed for reasonableness? If so, how do we determine whether a sentence is reasonable? What legal and factual matters, if any, must we consider? Is this review for abuse of discretion? Are factual findings decided by the district court reviewed for clear error, abuse of discretion, or on some other standard of review? Does it matter whether the findings are pertinent to the calculation of the advisory Guidelines range or pertinent to the application of the other 18 U.S.C. § 3553(a) factors?

4. What procedure is a district court required to follow in sentencing a defendant within the advisory Guidelines range? In particular, what should be the district court’s duty, if any, to articulate its consideration of the section 18 U.S.C. § 3553(a) factors?

5. If distinct from the procedure for within-Guidelines range sentences, what procedure is a district court required to follow in sentencing a defendant above or below the advisory Guidelines range?

6. What weight does the advisory Guidelines range have, in relation to other 18 U.S.C. § 3553(a) factors? In conducting a sentencing proceeding, may a district judge announce that he will impose a sentence within the advisory Guidelines range unless the parties present compelling reasons for imposing a sentence outside of that range? On review, should we determine whether the district court has given the advisory Guidelines range the appropriate weight, and if so, how?

Briefs responding to this order shall be filed no later than September 15, 2006. Any person or entity wishing to file a brief as an amicus curiae in response to this order is granted leave to do so pursuant to Fed. R. App. P. 29(a).

The last sentence essentially means that the Circuit really does want more amicus briefs than usual in this case.

For more on the cases, see Sentencing Law and Policy (of course).

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  2. The Ninth Circuit Is Soliciting Briefs in En Banc Sentencing Case:
blackdoggerel (mail):
Wow, that is... bizarre. Do courts of appeal ever do this, particularly on such a large scale, and especially granting leave ahead of time? I don't know about the wisdom of putting out such a cattle call -- it seems kind of pathetic, as in "please give us ideas for how to deal with this difficult issue!" -- but I definitely question the wisdom of the anyone-can-file policy. Have fun with some of those briefs, CA9.
8.25.2006 7:38pm
Kate1999 (mail):
What's the harm, BlackDoggerel? The fact that they asked for the briefs doesn't mean they'll actually read all of them.
8.25.2006 7:43pm
That would make a sweet assignment for Appellate Advocacy.

I guess the Ninth's intent here is really to write the conclusive opinion on post-Booker sentencing, and of course thereby prod Congress or SCOTUS into doing something about it to clear it up.
8.25.2006 8:19pm
Would you start a topic about this story? It has definite legal implications and is quite shocking.
8.25.2006 8:49pm
I suppose a law professor of overly creative mindset might make it a class assignment, and submit the student briefs en masse. If your brief gets cited favorably in the ruling, you get an automatic "A".
8.26.2006 8:44pm
Brian G (mail) (www):
Rules question: if you a member of the 10th Circuit Bar, but not the 9th, can you still sign your name to an amicus brief and submit it to them when they ask for it like this?
8.28.2006 2:58pm
Ira B. Matetsky (mail):
The First Circuit has entered orders soliciting amicus briefs in a few controversial cases. I don't recall seeing the Second Circuit (my home circuit) ever do so.
8.28.2006 3:22pm