Tuesday, April 28, 2009

"There is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera."

That's the Eleventh Circuit in USA v. Aldrich. Not sure I have anything to add to that one.

Moving on to other appellate news, the 11th Circuit reversed Judge Highsmith's sentence of probation for James Hendrick, "once Monroe County's powerful government attorney." Here's Jay Weaver's article and here's the opinion. The entire analysis on the sentencing is as follows:

The government cross-appeals Hendrick’s below-guidelines sentence. After
carefully reviewing the record and considering the arguments that the parties
briefed and orally argued, we agree with the government that the sentence is both
procedurally and substantively unreasonable. We accordingly vacate it and
remand for resentencing.


That's it? I understand (sort of) short opinions from appellate courts when they affirm, but to reverse with no analysis...

What say you dear readers? I have taken off moderation, so please be appropriate in the comments.

6 comments:

Anonymous said...

About f'ing time

South Florida Lawyers said...

Markus, good stuff, but now what am I going to write about?

Anonymous said...

We were all under punishment for a few weeks, but I'm glad I can finally blog again because it used to be my favorite part of the day. A couple of weeks ago, I wanted to blog my bet about the Castroneves case, but I'm glad I couldn't because I was wrong anyway. I would have been embarrassed even in anonymity. I've never said any vulgar or disrespectful things on this blog. The reason I use anonymous is because I don't know how to do it in other way. Anyway, the appellate court continues to be ridiculous.

Anonymous said...

II. SENTENCE

The government cross-appeals Hendrick’s below-guidelines sentence. After
carefully reviewing the record and considering the arguments that the parties
briefed and orally argued, we agree with the government that the sentence is both
procedurally and substantively unreasonable. We accordingly vacate it and
remand for resentencing.

This is an utter joke. This a person's life. The Eleventh Circuit remands the matter for resentencing without any analysis whatsoever. What has this Circuit come to. So sad.

Anonymous said...

The Circuit is largely a reflection of what the Republican's sought to do over the past 28 years...Absent Clinton's 8, in which he placed relatively conservative judges on the bench because he could not get any others through, the Republicans chose to place people they thought would advance their agenda in permanently anchored positions of authority.

Stephen said...

As with most everything else, Pittsburgh sure is different from Miami -- compare the very recent 3d Cir. opinion in the Tomko case (here: http://sentencing.typepad.com/files/tomko-3d-circuit-opinion.pdf) with the 11th Cir. opinion. The 3d affirmed a below-guideline probationary sentence, and the opinion (including dissent) runs some 80 pages; here's a highlight:

"The Government appeals the reasonableness of William Tomko’s below-Guidelines sentence of probation, community service, restitution, and fine for his tax evasion conviction. If any one of a significant number of the members of this Court — including some in today’s majority — had been sitting as the District Judge, Tomko would have been sentenced to some time in prison. But “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 128 S. Ct. 586, 597 (2007).... Where, as here, a district court decides to vary from the Guidelines’ recommendations, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597. These principles require us to affirm Tomko’s sentence."