Argument transcript in Beckles...

...is here.

And the Supreme Court decided a double jeopardy case this morning, Bravo-Fernandez:

The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.

Welcome back

The Supreme Court is back in full swing, and AFPD Janice Bergman has a big argument this morning in Beckles v. United States.  From SCOTUSblog:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines

This will be interesting for 11th Circuit watchers because this issue has deeply divided the court.  Good luck Janice!

Have a great Thanksgiving!

If felony-battery in Florida a crime of violence under 2L1.2 of the Sentencing Guidelines?

That's the question the en banc 11th Circuit will take up in U.S. v. Vail-Bailon.  Here's the panel decision by Judge Rosenbaum saying it is not a crime of violence:

When I was growing up, my parents told me not to judge a book by its
cover. The Supreme Court has expressed an analogous concern about concluding
that a crime qualifies as a violent crime under the Armed Career Criminal Act
(“ACCA”), based solely on the name of the crime. See Johnson v. United States,
___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s
offense of “rioting at a correctional institution,” a crime that the Supreme Court
characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent
felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony
battery—a crime that, from its name, may sound like a crime of violence—actually
satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing
Guidelines when it is committed by mere touching. Heeding the Supreme Court’s
warning, we have carefully compared the elements of felony battery under Florida
law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based
on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not
qualify as a “crime of violence” under § 2L1.2 when it is committed by mere
touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

Judge Jordan concurred, and visiting Judge Siler dissented.

The en banc order is here.

Will it be Justice Pryor?

It was the big Federalist Society meeting this weekend in which Justice Scalia was remembered and celebrated.  One of the takeaways is that 11th Circuit Judge William Pyror is quietly the favorite to get Scalia's seat. (Here's a short interview with him from the weekend.) He would be the first 11th Circuit judge to get the nod... 

It's hard to know exactly what PE Trump is thinking here though as he was busy this weekend tweeting about Hamilton.

In the meantime, I repost Judge Milton Hirsch's Constitutional Calendar today, which is really interesting:

On Nov. 21, 1864, in response to a request from Massachusetts Governor John A. Andrew asking him to express his condolences, President Lincoln wrote to Mrs. Lydia Bixby, a widow who was believed to have lost five sons during the Civil War.  Lincoln's letter was later printed in the Boston Evening Transcript.  Later still, it was revealed that two, not all five, of Mrs. Bixby's sons died in battle; one deserted, one was honorably discharged, and another either deserted or died a prisoner of war.

 

The authorship of the letter has been debated by scholars, some of whom believe it was written by John Hay, one of Lincoln's secretaries.  The original of the letter was destroyed by Mrs. Bixby, who was a Confederate sympathizer and disliked Lincoln.  Copies of an early forgery circulated for years, causing many people to believe that they had the original letter.

 

None of which matters.  The letter is the finest piece of epistolary prose ever written on this continent, and if Lincoln didn't write it, he meant to.  It serves to remind us that the highest function of political leadership in America's democracy is to inspire us with a regard for those principles that set this country apart.

 

As I do every year on the anniversary of its writing, I take pleasure in sharing this remarkable letter with my friends:

 

"Dear Madam,

 

"I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five sons who have died gloriously on the field of battle.  I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming.  But I cannot refrain from tendering you the consolation that may be found in the thanks of the republic they died to save.  I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

 

"Yours very sincerely and respectfully,

 

"A. Lincoln"