Not to say I told you so, but I told you so. Second Circuit Sentencing Blog brings to the forefront the decision in US v. Canova. Despite a monumental effort by Paul Shechtman (yes, THAT Paul Shechtman), the Second Circuit decided that if the Judge Covello of the District of Connecticut was not going to do what he was told, then they were going to smack him, kick him, throws things at him and then kick him again. The message is that they will grudgingly tolerate a little downward departure. Little. But make it a real downward departure, and it’s coming right back at ya. As many times as it has to. Get it?
No reason to restate what has already been stated at the Second Circuit Sentencing blog (and better than I could state it anyway), but I would like to add an additional point. For those who think that they can make a serious end run around the advisory sentencing guidelines by using such cheap tricks as facts, law and reason, forget about it. The only thing you’ll get out of it is an extra appeal or two.
Booker was just a bad dream. It never really happened. It’s a figment of your imagination. It’s a cruel, cruel hoax. There is still hope that the Supreme Court will address the Circuits’ refusal to give meaning to Booker and Fanfan, and its artful use of the word “advisory” to mean “we advise you to use it. Or else.” What the Circuit fears is unclear, but its message in Canova cannot possibly be misunderstood.
For those federal judges who come here to slum (I know, you only come for the Paris Hilton pictures and never read anything), I applaud and admire those of you who refuse to be turned into grid-reading clerks and exercise independence. Your refusal to go quietly into the night is an inspiration to those of us who believe that the law requires a broader vision than the Sentencing Guidelines Manual. And I believe I speak for all defense lawyers, and likely many prosecutors as well, when I say that you are what keeps us from becoming complete cynics and turning the Constitution into an artifact. Thank you. Sincerely.
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Do I keep banging my head against the wall with fact-laden sentencing memos explaining why the guidelines sentence is excessive under 3553, or do I call it a day and join the ranks of our colleagues who never even tried to convince the judges that Booker and Fanfan meant what they said?
You know the answer. We’re going to keep on trying. We’re going to keep on fighting. We’re going to have very, very sore heads. Good lawyers cannot do less. It is not in our make-up to just leave it at the minimum level of effort. We are driven to do better, no matter how impossible it may be.
SHG