Editor's Note :

Editor's Note :

There is a possibility of opinions on Wednesday, February 22.
On Wednesday the court hears oral argument in Kindred Nursing Centers Limited Partnership v. Clark. Ronald Mann has our preview.

Breaking News :

Breaking News :

It has now been more than 12 years since the Supreme Court’s landmark opinion in United States v. Booker recast the federal sentencing guidelines as “effectively advisory.” In subsequent cases, the court has clarified and reiterated the breadth of district-judge sentencing discretion within an advisory-guideline system. But on February 28, the court will confront whether mandatory statutory gun-sentencing provisions may limit a district court’s post-Booker sentencing discretion. In Dean v. United States, the justices will decide whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.

Like many federal defendants, petitioner Levon Dean is not a particularly sympathetic character. In April 2013, Dean (along with various others, including his brother) robbed alleged drug dealers of drugs and other property in Sioux City, Iowa. In each of these robberies, Dean and his brother utilized a modified .22-caliber semiautomatic Mossberg rifle to threaten, intimidate and batter their victims.

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Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government’s effort to remove a lawful permanent resident for a “sex crime.”

360px-u-s-_immigration_and_customs_enforcement_ice_logo-svg

The facts of the case sound like an episode of “Law and Order SVU.” In 2000, Juan Esquivel-Quintana’s parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person “under the age of 18 years” when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years’ probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.

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Tuesday round-up

By on Feb 21, 2017 at 6:18 am

Today the court returns from its February break to hear oral argument in two cases. First up is Hernández v. Mesa, a case that stems from the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent. Amy Howe previewed the case for this blog. Another preview comes from Laurel Hopkins and Eugene Temchenko at Cornell University Law School’s Legal Information Institute. The George Washington Law Review’s On the Docket also previews Hernández, along with all the cases in the February sitting. In USA Today, Richard Wolf reports on Hernández, remarking on its possible effect on already fraught “U.S.-Mexico relations.” Additional coverage comes from Mark Sherman for the Associated Press, who observes that the “legal issues are different, but the Supreme Court case resembles the court battle over President Donald Trump’s ban on travelers from seven majority Muslim nations in at least one sense”: “Courts examining both issues are weighing whether foreigners can have their day in U.S. courts.” David Gans in The New Republic argues that Hernández offers the court  “an important opportunity to reaffirm its core constitutional role of keeping the political branches in check, vindicating individual rights, and ensuring that no one is above the law,” and predicts that this “Supreme Court case will come down, as so many do, to Justice Anthony Kennedy.”

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Petition of the day

By on Feb 20, 2017 at 11:23 pm

The petition of the day is:

16-790

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

 

This week at the court

By on Feb 19, 2017 at 12:04 pm

The court issued orders from its February 17 conference on Monday. It granted certiorari in Class v. United States. The court also heard oral argument in two cases. There is a possibility of opinions on Wednesday at 10 a.m. The court will also hear oral argument on Wednesday in Kindred Nursing Centers Limited Partnership v. Clark. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their February 24 conference; our list of “petitions to watch” for that conference will be available soon.

 
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Petition of the day

By on Feb 17, 2017 at 11:14 pm

The petition of the day is:

16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

Court releases April calendar

By on Feb 17, 2017 at 3:21 pm

Yesterday the Senate Judiciary Committee announced that the confirmation hearing for Judge Neil Gorsuch will begin on March 20, creating at least the possibility that, if confirmed, Gorsuch could join the court’s current eight justices in time for the April sitting, which begins on April 17. Today the justices released the calendar for the April sitting, during which the court will hear 13 arguments – including an important religious liberty case that had been granted in January 2016, nearly one month before the February 13, 2016, death of Justice Antonin Scalia, whom Gorsuch would succeed on the court.

The justices agreed to review Trinity Lutheran Church v. Pauley on January 15, 2016. Under the court’s normal procedures, the case – in which a Missouri church is arguing that its exclusion from a state program that provides funds to nonprofits to resurface their playgrounds with rubber from recycled tires violates the Constitution – would have been argued in either April or fall of 2016. But the case (along with Murr v. Wisconsin and Microsoft v. Baker, two others granted that day) remained conspicuously absent from oral argument calendars through the end of 2016 and into the beginning of 2017. Although there is no way to know with certainty what accounted for the delay, one possibility was that the justices were hoping to avoid a 4-4 tie, in the absence of a ninth justice. On February 3, three days after President Donald Trump announced the Gorsuch nomination, the court released its March calendar, which included Murr and Microsoft but not Trinity Lutheran.

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Friday round-up

By on Feb 17, 2017 at 7:32 am

At Law.com, reporters “canvassed prominent lawyers from around the country for what questions they would like to see asked” at Gorsuch’s Senate confirmation hearing, which begins on March 20. At the Election Law Blog, Rick Hasen cites a report that Gorsuch disavowed statements in a 2005 National Review article in which the judge asserted that liberals’ “’overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary,’” depriving us of “’the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide’”; Hasen urges senators to ask Gorsuch how his views have changed, noting that theanswer would be illuminating as to the judge’s approach to access to the courts and constitutional rights.”

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Petition of the day

By on Feb 16, 2017 at 11:11 pm

The petition of the day is:

16-759

Issues: (1) Whether a defendant “induce[s]” the assent of another person, within the meaning of 18 U.S.C. § 2422, where the defendant accepts the request of the other person, who has already assented to the course of conduct prior to and independent of any action by the defendant; and (2) whether the court of appeals correctly applied the harmless-error doctrine to the exclusion of evidence of a government investigation showing the petitioner’s lack of interest in sex involving any underage person prior to contact with the government, where the petitioner’s lack of predisposition was essential to his entrapment defense.

The nomination of Judge Neil Gorsuch has moved into a phase that is unique to the Supreme Court confirmation process: trying to predict how a justice will vote on particular issues and cases in the future.

This predictive process may occur in two phases. The first is well underway – vast amounts of commentary and analysis about how Gorsuch may handle everything from employment-law cases to white-collar-crime issues. The second phase will take place in just over a month, when the 20 members of the Senate Judiciary Committee try to figure out what kind of questions to ask the nominee that will actually shed any light on his views.

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