Over at Sentencing Law & Policy, Doug Berman has an interesting post on Judge Pregerson's opinion Wednesday in Carrington v. United States, the case I blogged about that allowed a trial judge to reopen and resentence two long-final cases. Doug wonders why the Supreme Court might be interested in the case:

  Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too. But why? Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful.
  What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?
  Of course, finality is an important value, but this value is always balanced against other values. If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?

  I think Doug and I agree that the key question is whether Carrington is "permissible under the law." If Doug is right that the decision is permissible under the law, then Carrington is a fine decision and should remain on the books. On the other hand, if Carrington is impermissible under the law, it's a bad decision and should be overturned. So the key question becomes, is Judge Pregerson's decision legally correct?

  In my view, the answer is clearly "no." First, Congress has enacted a statute that sharply limits when judges can modify sentences: 18 U.S.C. 3582(c) states that "[t]he court may not modify a term of imprisonment once it has been imposed" unless one of two exceptions applies. Judge Pregerson's Carrington opinion held, and as far as I can tell no one disputes, that these exceptions don't apply here. That's why Judge Bryan couldn't resentence the defendants himself: Congress has pretty directly said that he lacks that authority.

  Given this statutory ban on resentencing, the only way for Judge Pregerson to allow the resentencing was to use whatever authority the Ninth Circuit has to "recall the mandate" of its prior decision sua sponte (on its own). Recalling the mandate is kind of like calling a do-over, and there is some authority for the view that a federal court of appeals has an inherent power (albeit a limited one) to recall the mandate even after a case has been made final under statutory law. However, it turns out that there's a history between the Ninth Circuit and the Supreme Court over the scope of this power to recall a mandate. That history explains why I think Judge Pregerson's decision is incorrect, and why the Supreme Court is likely to be interested in reviewing Carrington.

  The history begins with a 1997 Ninth Circuit decision, Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc). In Thompson, the en banc Ninth Circuit recalled the mandate in a capital habeas case involving a conviction for murder and rape. After a 3-judge panel of the Ninth Circuit had denied the habeas petition and the Supreme Court had denied cert, a majority of active judges on the Ninth Circuit sua sponte "recalled the mandate," found that the petitioner had been denied his Sixth Amendment right to counsel, and granted the habeas petition.

  The en banc opinion by Judge Fletcher (joined by Judge Pregerson) ruled that the circumstances of the case were "extraordinary," permitting the Ninth Circuit to recall its mandate. First, there had been a procedural mix-up among the Ninth Circuit judges that had accidentally blocked a vote on whether to hear the case en banc. Second, the original panel "made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice."

  The Supreme Court granted certiorari and reversed in an opinion by Justice Kennedy. Calderon v. Thompson, 523 U.S. 538 (1998). Justice Kennedy characterized the Ninth Circuit's recalling of its mandate as "a grave abuse of discretion." According to the Supreme Court, this authority was much more limited than the Ninth Circuit believed in light of the tremendous interest in the finality of sentences:

  [T]he State's interests in finality are all but paramount, without regard to whether the court of appeals predicates the recall on a procedural misunderstanding or some other irregularity occurring prior to its decision. The prisoner has already had extensive review of his claims in federal and state courts. In the absence of a strong showing of "actua[l] innocen[ce]," Murray v. Carrier, supra, at 496, the State's interests in actual finality outweigh the prisoner's interest in obtaining yet another opportunity for review.
  Based on these considerations, we hold the general rule to be that, where a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus jurisprudence. The rule accommodates the need to allow courts to remedy actual injustice while recognizing that, at some point, the State must be allowed to exercise its "sovereign power to punish offenders." . . .
  "[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence." Sawyer, 505 U.S., at 339. We have often emphasized "the narrow scope" of the exception. Id., at 340; accord, Harris v. Reed, 489 U.S. 255, 271 (1989) (O'Connor, J., concurring) ("narrow exception" for the "'extraordinary case'"). "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Given the rarity of such evidence, "'in virtually every case, the allegation of actual innocence has been summarily rejected.'" Ibid.

  Now we can finally come back to Carrington. In my view, the Supreme Court would be likely to grant in Carrington because it seems like a replay of Thompson. It seems difficult to square the Ninth Circuit's vision of its power to recall the mandate articulated in Carrington with the Supreme Court's vision of that power in Calderon v. Thompson. If there is an argument for how Carrington is consistent with Thompson, I am certainly open to it, but it's hard to see what it might be (the federal/state difference might help, but it's not clear how far that can go). Judge Pregerson cites Thompson in passing, but doesn't discuss it or make an attempt to square his decision with the Supreme Court's instructions in that case. Given that, the answer to Doug's fair question — "If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?" — is that the Supreme Court has already set this balance in Thompson, and the Justices probably won't take too kindly to Judge Pregerson's ignoring their prior decision.

  One last thought. It is true, as Doug mentions, that the Ninth Circuit had some arguably creative readings of its power to recall the mandate in United States v. Crawford, a one-page order issued last year in the wake of Booker. However, my understanding is that the Justice Department chose not to file a petition for certiorari in Crawford. We don't know why, of course, but it may just be that amidst the post-Booker fallout the narrow decision in Crawford wasn't worth pursuing. If no petition was filed, then of course the Supreme Court couldn't act. I would guess that the SG's office will take a different view of Carrington: Carrington is much broader than Crawford; it's a full opinion rather than a short order; and more time has passed since Booker was handed down. Given that, I would guess that Judge Pregerson's opinion won't be the last word in the Carrington case.