Friday, March 16, 2007

Dicta About Dicta

It is axiomatic that one panel of a Court of Appeals cannot overrule a decision of another panel. See, Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985). This apparently, however, does not prevent attempting to limit to nothingness the holding of the other panel's decision.

In discussing what the Court of Appeals requires of district judges in order to conduct its own reasonableness review, the Sixth Circuit has held, "We emphasize the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence. Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable." United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

In United States v. (Dontay) Tyler, No. 05-2252 (6th Cir. 3/2/07) (unpublished) (Per Curiam: Merritt, Daughtrey & Griffin, JJ.), the defendant/appellant argued that the district court had failed to address the mitigation presented at the sentencing hearing, citing Richardson. The per curiam court states, "We conclude that the defendant has read too much into our opinion in Richardson. ... And, in dicta, we further suggested that '[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it.'" (Slip op. at 4)

While this "holding" would seem to limit the holding above in Richardson out of existence, it should be noted that the statement in Tyler appears to be dicta itself. It is certainly not critical for the ruling because the court finds that the district court complied with "both the holding and the dicta in Richardson." Such a holding is not, therefore, necessary and would seem to be dicta in and of itself. So if dicta is not persuasive authority, what is the impact of dicta about dicta?

Even as dicta, however, this appears to signal a retreat from that arm of the court that has been trying to give teeth to the changes wrought by Booker. (See, Paradigm Shift or Business as Usual?, below) Given the questions asked by the Court during the arguments in Rita and Claiborne, it is unclear how much of the post-Booker mess the Supreme Court will clean up. There may yet be much to be done in Vonner. More to come.

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