Thursday, December 16, 2010

Almany on Remand: A Must Read

So, Mr. Almany got his extra five years back in light of Abbott. United States v. Almany, No. 08--6027 (6th Cir. Dec. 16, 2010) (to be published). Panel of Judges Merritt, Martin, and Cole.

"The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after the Supreme Court vacated our judgment and remanded it to us in light of the Abbott case."

http://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdf

Judges Merritt and Martin provide a must-read concurrence. It's brief.

* "The Supreme Court reversed our decision. We were wrong because in these kinds of statutes, Congress normally intends to make sentences longer, not shorter, more severe, not less."

* "[A]pparently the rule of lenity based on ambiguous language does not operate when the court resorts to the 'Equity of the Statute' to give it a construction opposite to the meaning the words ordinarily signify because the Court knows that what the legislature intended was not what it wrote. Nothing is mentioned about an ex post facto problem when a statute is interpreted contrary to its words. The Supreme Court is 'final but not infallible' and we must follow their interpretation of statutes. The 'Equity of the Statute' doctrine is alive and well — although unmentioned by the Supreme Court — more than seven centuries after its origin at common law."


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