Petition Raising Applicability of Booker to section 3583(c)(2) Resentencing Proceedings Set for Conference
The first petition raising the issue of whether Booker's flat statement that the guidelines are advisory in all contexts includes resentencing proceedings pursuant to Section 3582(c)(2), US v. Rhodes, Docket No. 08-2111,has been set for conference next week, on April 24. The decision below is found at 549 F.3d 833 (10th Cir. 2008).
The Petitioner asks the Supreme Court to address the following issue:
Did the Tenth Circuit violate United States v. Booker, 543 U.S. 220 (2005), by holding that the federal sentencing guidelines were mandatory in sentencing hearings held pursuant to 18 U.S.C. sec. 3582(c)(2), thereby conflicting with the holding of United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007)?
The Tenth Circuit had concluded that the Sentencing Commission's policy statement in USSG 1B1.10, combined with the statutory language, meant that the district court was limited to granting only the stingy 2-level reduction allowed by the crack guideline amendments, despite Mr. Rhodes' evidence of extensive post-sentencing rehabilitation. The Tenth's decision has much broader implications than the current crack resentencing cases; resentencings pursuant to future guideline amendments would be similarly limited to whatever the Commission chose to grant, effectively imposing a mandatory guideline regime in the context of 3582(c)(2) resentencings.
Mr. Rhodes' petition is not the only one pending before the Court; this writer knows of at least four others currently pending. There is a circuit split on this issue. Hopefully, the Court will grant cert. on this issue and make it clear, once and for all, that it meant what it said about advisory Guidelines.
The Petitioner asks the Supreme Court to address the following issue:
Did the Tenth Circuit violate United States v. Booker, 543 U.S. 220 (2005), by holding that the federal sentencing guidelines were mandatory in sentencing hearings held pursuant to 18 U.S.C. sec. 3582(c)(2), thereby conflicting with the holding of United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007)?
The Tenth Circuit had concluded that the Sentencing Commission's policy statement in USSG 1B1.10, combined with the statutory language, meant that the district court was limited to granting only the stingy 2-level reduction allowed by the crack guideline amendments, despite Mr. Rhodes' evidence of extensive post-sentencing rehabilitation. The Tenth's decision has much broader implications than the current crack resentencing cases; resentencings pursuant to future guideline amendments would be similarly limited to whatever the Commission chose to grant, effectively imposing a mandatory guideline regime in the context of 3582(c)(2) resentencings.
Mr. Rhodes' petition is not the only one pending before the Court; this writer knows of at least four others currently pending. There is a circuit split on this issue. Hopefully, the Court will grant cert. on this issue and make it clear, once and for all, that it meant what it said about advisory Guidelines.
posted by Anonymous at 3:25 PM
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