Tuesday, September 06, 2005

Discretionary Departures on Appellate Review -- No Jurisdiction?

Today, the Sixth Circuit held, in US v. Puckett, No. 04-5988 (6th Cir. Sept. 6, 2005) ( opinion available here), that the Court lacks jurisdiction to review discretionary denials of departures. The Court stated:

In light of our own precedent, and the recent decisions by the other circuits, we hold that ... although the sentence departed from may be reviewed under Booker, we shall not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.

What does this holding mean for sentences in a post-Booker world? Prof. Berman, in a post here, argues that such a conclusion cannot "be sensibly squared with the new reasonableness standard of review that Booker creates." As Prof. Berman notes, this raises critical issues with respect to how the Court will review so-called "variances" in sentences under the new regime.

In light of Judge Rogers' dissent, however, this holding may not even address Booker review, as it appears to upon first glance. Judge Rogers notes that the defendant raised the Booker issue in reply and the majority refused to remand the case for consideration in light of Booker.

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