Thursday, July 22, 2004

Insubordination in the 9th Circuit?

Apparently at least one district judge within the 9th Circuit does not want to heed the 9th Circuit's Ameline holding, as reported here in The Recorder. S/He remained anonymous.
But not everyone was so sure the opinion would clear up the confusion. "It stops sentencing dead in its tracks in certain types of cases. ... The only thing a judge can do is impose a sentence that is the minimum," said one district judge within the 9th Circuit who asked to remain anonymous. "District court judges should move very slowly in sentencing to allow the Supreme Court to speak on this."
Whether one agrees with the Judge's views or not, we wonder whether it is proper for district judges to decide to overlook Circuit precedent by delaying proceedings in order to await a decision from the Supreme Court. The 9th Circuit was obviously aware, when it ruled in Ameline, as was every prosecutor, federal judge, and criminal defense lawyer, that the SG would be filing petitions in Booker and Fanfan before the Supreme Court -even if these were not filed until some hours after the Ameline opinion issued. If the 9th Circuit panel -albeit a divided panel- felt it should wait for the Supreme Court, it could have done so.