Sentencing Quandaries

An article on Law.com Aug. 30th., from the Fulton County Daily Record, explores yet another sentencing quandary and reference to Booker. Senior Judge James Hill of the 11th U.S. Circuit Court of Appeals, in joining the rest of the Court’s panel in U.S. v. Bordon, No. 04-10654 (Aug. 25, 2005) in holding that “Booker was irrelevant to the case as a result of a long-standing 11th. Circuit precedent stating that ‘issues & contentions not timely raised in briefs are abandoned,’” none-the-less had reservations.

“Stare decisis is an important doctrine,” Hill was quoted as saying, but continued by adding that he trusted that might be tempered with justice being done. The 11th. Circuit’s precedent was set in November 1990 in a case in which the question was also how that court should handle changes in precedent from the Supreme Court. Hill had dissented then, writing of Civil Rule 11 ( timely filing of motions ) that, “despite the numerous instances in which this Court has found sanctions to be appropriate, the majority now forces attorneys into a Hobbesian dilemma: either refrain from making an argument because case law contains no basis & significant adverse precedent exists, or make the argument and risk sanctions for spurious claims.” [See McGinnis v. Ingram Equipment Co., 918 F2d. 1491 (1990)]

New Jersey’s “presumptive sentencing scheme,” however, an article in Lawyers Weekly, USA reports, “violates a defendant’s 6th Amendment rights, although that defendant may be disqualified from parole eligibility and subject to consecutive sentences based on facts found by a judge rather than a jury.” (See State v. Natale per presumptive sentencing scheme, State v. Franklin re consecutive sentences, and State v. Abdullah re parole disqualifications)