Sunday, December 03, 2023

And means And, part 2. (UPDATED with Judge Jordan's memories of Justice O'Connor)

 We know from United States v. Garcon that in the 11th Circuit "and" means "and" for purposes of the safety valve provision of the Sentencing Guidelines.  (Another case involving the same issue was argued earlier this Term in the Supreme Court.)

Despite the en banc 11th Circuit already saying "and" means "and" for purposes of the Sentencing Guidelines, federal prosecutors and probation officers are taking the position that the word "and" means "or" in the new "Zero Point Offender" sentencing guideline provision, which provides that if you have no criminal history, you receive an additional two level reduction so long as certain other conditions are met.  One of the conditions is that:

"(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848." (emphasis added).

Seems pretty clear as a matter of statutory construction and binding precedent that to be disqualified, you'd have to receive an aggravating role enhancement AND be in engaged in a CCE.  If you don't have both, you would still qualify for the two level reduction.

And at least two district judges in our district have so held, overruling objections from local AUSAs and probation officers, who are urging judges to disregard Garcon.  It's wild to me that there are some prosecutors so invested in increasing a first time offender's sentence by two levels that they are willing to ask a judge to ignore a binding 11th Circuit case and a pretty basic, straightforward reading of the statute.  It's one thing if these prosecutors were arguing -- listen, we know the 11th Circuit has ruled the other way, but the case is pending in the Supreme Court and we'd like to preserve this issue.  And don't get me started on the probation officers... why do they have a say in this at all?  They are not lawyers and should not be arguing the guidelines.  It's maddening.

In any event, Justice O'Connor would have really enjoyed the statutory construction issue in Garcon. She was a true inspiration to so many.  Here are the statements of the Justices about her passing.  

Here's the Chief:

Statement of Chief Justice John G. Roberts, Jr.:

A daughter of the American Southwest, Sandra Day O’Connor blazed an historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.


UPDATED -- Thanks to a commenter for pointing me to this AJC article, which quotes Judge Jordan extensively about Justice O'Connor (he clerked for her back in the late 80s):

He fondly remembered being invited to her Chevy Chase home in Maryland most Saturdays, when O’Connor would cook while discussing the following week’s cases with her clerks.

Tex-Mex was usually on the menu, Jordan said.

“The stuff that she made for us was very, very good,” he told The Atlanta Journal-Constitution. “Tacos, burritos, nachos. Things like that. It wasn’t all exclusively Tex-Mex, but that was, I think, the majority of her repertoire.”


On the occasional Saturday spent working in O’Connor’s chambers, Jordan said she would bring food from home. He said the weekend conferences were a special time for the clerks as O’Connor shared her detailed thoughts on cases.


Anonymous said...

While we’re at it, AUSAs are also arguing against the plain meaning of “loss” in the Guidelines post-Dupree, especially since Judge Ruiz issued an order on it explaining the lack of ambiguity. Fortunately other judges have agreed with him.

Anonymous said...

This probation officer here gets guidance from the U.S. Sentencing Commission -- you too can give them a call.

Anonymous said...

She was a good justice but it irks me how she is portrayed in the media as some sort of moderate. She was the biggest conservative in the classic sense. Its not that she was pro-abortion but did not want to overthrow precedent. I remember in my first Constitutional Law class in college discussing a case where she wrote the majority for a split Supreme Court. The state of Michigan in the mid 80s drug war days passed a law for life in prison for having an ounce of cocaine (I forget the amount but it was a relatively small amount). The appeals court did rule it was a violation of the 8th amendment. The Supreme Court reversed and said it was constitutional. Her rationale was the court could not step in and over turn state criminal statutes otherwise the floodgates would open. Just think about that for a moment because I will come back to this. That decision shows how bedrock conservative she was. A true conservative does not seek to overturn decade long decisions or overly get involved in state cases where their state Supreme Court has ruled. However her inconsistency came out in Bush Vs Gore. The Florida Supreme Court ruled yet the US Supreme Court got involved. It shows how politics still guides some of our most brilliant and conservative justices. I seem to recall her regret in that decision many years later that the court was split on a political divide. So I hate when the media keeps referring to her as some moderate.