Judge Fay vs. Judge Martin

This opinion about what counts as an aggravated felony got a little heated between Judges Fay and Martin. 

First, a portion of the dissent by Judge Martin:

This case, of course, presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in a harsher sentence for criminal defendants. 

Here's Judge Fay's response:

The dissent’s assertion that we use comity only when it increases a defendant’s sentence is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming probabilities are there would be no appeals. The dissent does not cite one case in the posture of this case, where defense counsel obtained a clarification order of a state-court sentence well after the state procedural period for challenging the sentence had expired to attempt to alter a later federal sentence in federal court. Under the circumstances of this case, the district judge determined the subsequent state-court clarification order was not entitled to deference, because of the unambiguous language of the sentencing order as well as federal statutory and circuit law. The dissent’s charges impugning the integrity of our court are both outrageous and totally unfounded. 

Woah. It didn't seem to me at all that Judge Martin was impugning the integrity of the court of which she is also a member. It seemed to me that she was pointing out what all criminal practitioners know about appellate courts. Good for Judge Martin. (As an aside, the majority only had one 11th Circuit judge, who was joined by a judge from the court of international trade.)