If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Sick burn by Justice Scalia. He came out on the completely wrong side of this, but at least his writing is entertaining (and at least he wrote the other opinion that day striking the ACCA residual clause; that's more than you can say for Alito, who is entirely predictable and political, and a boring writer.).

Perhaps you'd like to see you own name in a Scalia insult... well, click here for your Scalia insult.

Meantime, it's the last day of the Term today.  Pretty anticlimactic. Go to SCOTUSblog at 10am to see the final 3 opinions.

In the meantime, here's your Monday morning moment of zen:

Pointing a laser pointer at a plane... (TWO UPDATES)

... got this dude 14 years.  14 YEARS!!

Thankfully, the 9th Circuit vacated one of the convictions, so he'll get resentenced.  From the opinion:

There ought to be a law against shining a laser pointer at
an aircraft. In fact, there is, and it’s punishable by up to five
years in prison, as appellant Sergio Rodriguez discovered for
himself. Rodriguez, his girlfriend, and their kids were fooling
around with a laser pointer one summer evening in the
courtyard of their apartment complex – trying to see just how
far it could go – and they shined it at overflying helicopters.
Rodriguez was convicted of Aiming a Laser Pointer at an
Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced
to the maximum sentence: five years in prison. Rodriguez
does not challenge that conviction.
He also was convicted of another crime stemming from
the same conduct – Attempting to Interfere with the Safe
Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5)
and (8). That crime requires proof of a willful attempt to
interfere with the operator of an aircraft, with either the intent
to endanger others or reckless disregard for human life.
Rodriguez was charged with and found guilty of the reckless
variety, and for that offense, was sentenced to fourteen years
in prison.
The evidence clearly shows that Rodriguez was rightfully
convicted of aiming the laser pointer at a helicopter (§ 39A).
However, there is insufficient evidence that he willfully
attempted to interfere with the safe flight of the helicopter
(§ 32(a)(5)). Rather, the evidence showed that he was
attempting to see how far his laser would go at night – a
stupid thing to do, yes, but there is no evidence that he was
trying to interfere with the pilot. Section 39A is designed for
knuckleheads like him. On the other hand, 18 U.S.C.
§ 32(a)(5) is designed for both the Osama bin Ladens of the
world – people trying to bring down a plane, intending to
cause harm – and those who are aware that their actions are
dangerous and could harm others, but just don’t care. The
failure to recognize this distinction is to fail to appreciate that
Congress saw fit to create two different crimes, one more
serious than the other, for two different types of offenders.

Meantime, another Judge Moore sentence is at the center of an 11th Circuit opinion.  The court says there was a procedural error:

Juan Gutierrez (“Defendant”) appeals his 72-month sentence of imprisonment, imposed for violating conditions of his supervised release in three separate cases. Defendant argues that his sentence was procedurally unreasonable because the district court improperly considered alleged criminal conduct by Defendant that had not been proved. Defendant also argues that his sentence was substantively unreasonable because the district court abused its discretion in weighing the factors under 18 U.S.C. §§ 3583(e) and 3553(a).
Upon careful review of the record and the parties’ briefs, we conclude that, in imposing sentence, the district court committed procedural error by largely relying on alleged criminal conduct by Defendant that the latter argued had not been proved by a preponderance of the evidence, and that the court did so after having stated that it would not consider this conduct. We therefore VACATE Defendant’s sentence and REMAND for a new sentencing hearing on Defendant’s revocation proceeding.

 The opinion ends this way:

Because we conclude that the court committed a procedural error, we do not reach the question whether the court’s sentence would have been substantively reasonable had Defendant been properly proved to have engaged in new smuggling activity. We therefore remand for a new sentencing hearing at which the district court shall allow Defendant the opportunity to contest any information that the court is considering as a sentencing factor and at which the court shall consider only such conduct as is proved by a preponderance of reliable evidence.

Hmmmm. Where have I heard that before? Any bets on whether the sentence will be any different on remand?

UPDATE -- Big decisions by SCOTUS today, including healthcare.  Interestingly, Scalia uses "SCOTUS" in his dissent... first time that expression has been used in a Supreme Court opinion.  He says that Obamacare should be called SCOTUScare...  All kinds of funny memes on the internet about the opinion.  Here's one:






SECOND UPDATE -- Another sentencing reversal by the same panel with the same district judge here.

THIRD UPDATE -- And the same lawyer won both cases -- Richard Klugh.  Congrats!

Third Circuit issues incredible order:

This doesn't involve our district or circuit, but I find this order by Third Circuit Judge Theodore McKee absolutely fascinating (h/t How Appealing):

The Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today. The government is hereby ordered to use its best efforts to intercept Petitioners when they land tonight in Guatemala City and to return Petitioners to the United States immediately. If the government is unable to intercept Petitioners at the airport, they must locate Petitioners in Guatemala and return them to the United States as quickly as possible. Upon their return, Petitioners are granted a stay of removal pending disposition of their petition for review. If, upon contact, Petitioners inform the government that they do not want to return to the United States, the government shall secure a written memorialization to that effect -- even if that writing is in Spanish.

The only thing that would have made it better is if he would have ordered the return flight to be first class.

Reminder -- don't take a GoPro into Court

This CNN intern learned the hard way yesterday at the Supreme Court:

The Supreme Court of the United States briefly removed media interns from its press room on Monday after a CNN intern was caught recording video footage with a GoPro camera that he had strapped to his chest, the On Media blog has learned.
The episode led to an impromptu meeting among top CNN executives and editors in Washington, a call to the company's legal department, and a profuse apology to the Supreme Court's public affairs team. Recording devices are prohibited from both the Supreme Court Press Room and the adjacent Public Information Office, as well as from the court room generally.
In a statement, CNN said that the intern "misunderstood the rules about recording inside the Supreme Court's Public Information Office and acted inappropriately. We've taken the necessary action to remedy this situation. We profusely apologize to the Court."
The intern, Walbert Castillo, had been assigned to serve as "a runner," relaying the court's opinions from the building to CNN correspondent Ariane de Vogue, who was waiting in the Supreme Court plaza. The process has become known as "the running of the interns," given the speed and intensity of the running-shoe clad youth.
In addition to his runner duties, Castillo had been asked to wear a GoPro camera to record the event for an episode of CNN's digital video series, "Being Moody," hosted by reporter Chris Moody. Castillo kept the GoPro recording while he was in the press room, which was prohibited -- the Supreme Court fears that a recording device may pick up audio of a court decision -- and was forced to turn it off. Castillo and other interns were then briefly removed from the room.

Three published criminal opinions yesterday  -- 1) United States v. Cavallo, per Julie Carnes, a reversal for not allowing the defendant to confer with his lawyer during his testimony; 2) United States v. Williams, per visiting Judge Coogler, an affirmance in a fake check case; and 3) United States v. Frediana, per Judge William Pryor, which addresses the following interesting issue:

This appeal requires us to decide whether hostilities related to the use of military force against terrorists and Iraq, as authorized by Congress, have“terminat[ed]” under the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287. Seven years after Steven Frediani committed the crimes, a federal grand jury indicted him on one count of conspiracy to commit aircraft parts fraud, id. §§ 38(a)(1)(C), (a)(3), and two substantive counts of aircraft parts fraud, id. § 38(a)(1)(C). Frediani moved to dismiss the substantive counts of the indictment as untimely, id. § 3282(a). The district court denied his motion because, when Congress authorized the “use of the Armed Forces,” the Act tolled the statute of limitations for frauds against the United States until the “termination of hostilities as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress,” id. § 3287. On appeal, Frediani argues that the “hostilities” related to the “use of the Armed Forces” “terminat[ed]” over a decade ago, id., so the Act does not toll the statute of limitations for his crimes. Frediani also argues that the district court abused its discretion when it admitted “other act” evidence under Federal Rule of Evidence 404(b). Because the plain language of the Act requires a Presidential proclamation or a concurrent resolution of Congress to end the tolling of the limitations period and the district court did not abuse its discretion when it admitted the “other act” evidence, we affirm Frediani’s convictions.

No real fireworks from these opinions, unlike the Rosales-Bruno case, which Brian Toth blogged about.  It's really worth a read to see the bubbling hostility between the two factions of the court.  It's insane to me that an 87-month sentence can be reasonable after the court determined that the sentence was incorrectly decided the first time around because of an illegal 60-month enhancement. 

The Supreme Court is dishing out opinions at the end of the Term.  You gotta love Justice Kagan, quoting from comic books in the Spiderman case:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

I don't agree though -- if something is wrong, you have a great responsibility to fix it, not to stick to stare decisis.  We have the Supreme Court to improve upon the law when it's messed up.  In that case, everyone agrees that Brulotte makes no sense.  Fix it!

When reviewing sentences, Chief Judge Carnes and Judge Wilson agree on standards, but not always on results

After being convicted for illegally reentering the United States, Jesus Rosales-Bruno appealed against his top-of-the-guidelines-range sentence of 87 months’ imprisonment, urging that his sentence had been based on an improper enhancement. The Eleventh Circuit agreed, vacated the sentence, and remanded for a do-over. “We express no opinion,” the court cautioned, “what sentence would now be appropriate.” Despite that disclaimer, Rosales-Bruno had reason to be optimistic about receiving a lower sentence; without the improper enhancement, a top-of-the-guidelines-range sentence was (only) 27 months’ imprisonment. The resentencing, however, did not go as Rosales-Bruno would’ve hoped. Citing Rosales-Bruno’s criminal history, the district court imposed a major upward variance and sentenced Rosales-Bruno to 87 months’ imprisonment. In short, Rosales-Bruno’s sentence remained the same, even though the way that the district court arrived at that sentence the second time about was different.

These unique facts led to a fascinating set of sharply worded opinions issued Friday by the Eleventh Circuit on how the court goes about reviewing sentences for reasonableness. Chief Judge Carnes, in a 51-page majority opinion, said the sentence wasn’t substantively unreasonable; Judge Wilson, in a 32-page dissent, said it was substantively unreasonable. These opinions touch on or tussle over many important topics—from the weight the guidelines should be given in sentencing, to how deferential appellate courts ought to be in reviewing an out-of-the-guidelines-range sentence for reasonableness, to whether judges who dissent from unpublished decisions can publish their dissents, to which of the judges best uses Mark Twain to support his position. But most notable about United States v. Rosales-Bruno is that both Chief Judge Carnes and Judge Wilson go beyond just the particulars of the case. Each writes at length about the Eleventh Circuit’s sentencing law in general, and the impressions that certain of its current and former judges, and others, have of that law.

Relying heavily on data from the U.S. Sentencing Commission and set forth in three appendixes to his opinion, Chief Judge Carnes begins part V this way:

Part II of the dissenting opinion criticizes this Court as a whole for the message the dissenting judge believes we have sent to district courts about how we review sentences for reasonableness. The dissent’s criticism is not about the legal standards that we have announced or the holdings of our decisions. We made clear in our en banc decision in Irey that the principles we announced in that decision applied equally to sentences above and below the guidelines range. 

The dissent acknowledges that our decisions, particularly Irey, have correctly stated the law. So, we have gotten the law right. 

The dissent’s criticism of this Court is that even though we have gotten the law right, it believes that the results of our substantive reasonableness decisions have sent a message to district courts that we will not vacate unreasonably long sentences, only unreasonable short ones. We are not told whether the accusation is that the Court has done this deliberately or just negligently. In any event, if we have been sending a message that contrary to the neutral principles we have announced we will favor upward variances more than downward ones, either we are not good at sending messages or the district courts of this circuit are not good at receiving them. The irrefutable fact is that district courts in our circuit impose far more downward variance sentences than upward variance ones. And the disparity in the rate at which downward and upward variance sentences are being imposed is increasingly favoring downward variances.

Majority Op. 39–40 (citations omitted).

Part II of Judge Wilson’s opinion takes this view:

We have never vacated a sentence because it was too high, imposing a sentencing ceiling on remand. By contrast, on numerous occasions, we have vacated sentences because they were too low and imposed a sentencing floor. This forces me to believe that we are grading harshness and lenience on different scales. By failing to adhere to Irey and Pugh in this upward variance case, the Majority opinion reinforces this unstated double standard. It is true that we say all sentences are meaningfully reviewed for reasonableness, but in practice, it seems that only lenient sentences are subject to vacatur on purely substantive grounds. The message that we are sending to the district courts by this precedent is that they enjoy virtually unfettered sentencing discretion, so long as they sentence harshly. In other words, while we say otherwise, we are in reality reading a “severity principle” into sentencing that should not be there.”

Dissenting Op. 74–75 (citations omitted).

The third judge of the panel was District Judge Corrigan, who sat by designation. Judge Corrigan stated—wisely—that it was “unwise for [him], as a visitor, to join in the important debate between Chief Judge Carnes and Judge Wilson regarding Eleventh Circuit sentencing precedent.” He concurred only “in the result.”

And for Rosales-Bruno, it is only the result that matters.

Good Graphics?

In recent months, the White House and DoJ have been using graphics and slides on social media and at press conferences to make their points.  The White House has been doing a very good job with this, making clear easy to read graphics.  DoJ, not so much.  Here is a good example of an awful slide that DoJ used yesterday with the big medicare fraud takedown :

Ooof.  This may be one of the worst slides I have ever seen.  Just for starters, it's got way too much information, graphics that don't mean anything, shorthand that is unintelligible, facts that aren't important, and on and on.

Here's how to do a slide, by the White House:

Ahhhh, much better.

These slides were taken from the Twitter pages for the White House and DoJ.

Bueller? Bueller?

Should be an interesting few days in mag court... About 80 people were arrested for Medicare fraud over the last few days, and the PDs and CJA lawyers are having their annual conference in Naples. The PD's office always leaves behind an emergency lawyer, who is going to be very very busy. I wonder who drew the short straw this time. 

"Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net."

That was Judge Rosenbaum today for a unanimous 11th Circuit in United States v. Wingo.  The rest of the intro is also really well done:

Sometimes running a district court can be like a high-wire balancing act. But when it comes to ensuring the competence of defendants when they go to trial or plead guilty, the court takes on the role of a safety net.
Our criminal-justice system depends on the exercise of, or knowing and intelligent waivers of, constitutional rights. But to engage in these activities, a defendant must first and necessarily have the abilities to understand the proceedings and to assist counsel. Because competence is the base upon which other constitutional rights balance, due process and Section 4241(a) of Title 18 of the United States Code demand that a hearing on a defendant’s competence be held whenever reasonable cause exists to believe that a defendant may not be competent to proceed to trial or to enter a guilty plea.
Here, no hearing occurred, despite evidence creating reasonable cause to believe that Appellant Andrew Wingo might not have been competent to proceed. We therefore hold that the district court did not satisfy its duty under 18 U.S.C. § 4241(a). We remand this case to the district court so that it can determine whether Wingo’s competency at the time of his guilty plea can be evaluated nunc pro tunc, and if so, for an assessment of his competency at the time of his guilty plea and sentencing. If Wingo is determined to have been incompetent, or if a nunc pro tunc evaluation cannot be made, Wingo’s conviction and sentence must be vacated, subject to the government’s right to try him should he become competent. On the other hand, if Wingo is determined to have been competent, his conviction and sentence must be affirmed.

Meantime, Justice Scalia referred to Justice Ginsburg as Justice Goldberg.  WHOOPS.

While delivering the decision in the immigration case Kerry v. Din on Monday, Scalia listed the justices who dissented from the opinion and, instead of saying “Ginsburg,” said “Goldberg.”

Chief Justice John Roberts leaned over and whispered in his ear, to presumably notify him of the error.

“What did I say?” he asked Roberts, drawing laughter from spectators and members of the press in the courtroom.

After his colleagues told him what he said, Scalia shook his head and apologized to Ginsburg.

“Sorry about that Ruth,” he said.

Scalia was of course quick to joke when Joe Klock famously messed up a bunch of names before the Supreme Court:

Arguing a case before the Supreme Court is a dream for many lawyers, a chance to shine before the nation’s highest court. But it seems attorney Joseph Klock could use a little more polish.

Klock, representing Florida Secretary of State Katherine Harris, stumbled responding to questions during the Bush vs. Gore case Monday morning, twice referring to justices by the wrong name.

First, Klock surprised everyone in the courtroom by referring to Justice John Paul Stevens as “Justice Brennan,” apparently referring to Justice William Brennan, who retired from the Supreme Court in 1990 and died in 1997.

“I was so tired that I was happy I didn’t call one of them Justice Gore,” Klock told Good Morning America today. “And I’m not really very good with names.”

And after his first mix-up Monday, Klock referred to David Souter as “Justice Breyer,” referring to another of the court’s justices, Stephen Breyer.

“I’m Justice Souter,” came the reply from the bench. “You’d better give that up.”

Then Justice Antonin Scalia got into the act, drawing a roar of laughter from the gallery by beginning his next question, “Mr. Klock, I’m Scalia.”

Enjoy: