Jeff Gamso sums up Ezell Gilbert’s situation succinctly.

The very short version.  On that day in March, Gilbert was sentenced to 292 months in prison by a United States District Judge in the Middle District of Florida.  The judge didn’t want to give him that much time, but the government convinced him that he had no choice under the sentencing guidelines.*  Gilbert argued then that he was improperly determined to be a career criminal subject to a mandatory enhancement under the guidelines.  The courts rejected that argument.

The thing is that 11 years after he was sentenced, the Supreme Court addressed that very argument (not in his case) and said it was right.  Do all the math again, and it seems that instead of a sentencing range of 292-365 months, Gilbert should have faced a range of 151-188 months.  Oh, and along the way the guidelines stopped being mandatory and became advisory.

Ooops.

Nobody is arguing that Gilbert deserves that extra time, or needs it.  Back when he was sentenced, the regime was completely different.  He made the right arguments at the time, but the law had yet to recognize that he was right.  That happens more than you would think.

The  en banc decision by the 11th Circuit was understanding, but its hands were tied.

[W]e granted rehearing en banc in this case to decide whether the savings clause contained in 28 U.S.C. § 2255(e) permits a federal prisoner to challenge his sentence in a 28 U.S.C. § 2241 petition when he cannot raise that challenge in a § 2255 motion because of the § 2255(h) bar against second and successive motions. The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does not exceed the statutory maximum.

Rules.  And gifts.  As Nancy King explains at Habeasbook :

Judge Pryor concurred, presenting his view that the Suspension Clause does not limit Congressional restrictions on habeas review of criminal judgments.  ”The Supreme Court has never held that the Suspension Clause protects anything more than the writ as understood in 1789,” he stated, collecting authority for this reading of the Clause. ”Because the Suspension Clause does not provide any rights to prisoners convicted and sentenced by courts of competent jurisdiction, any relief that Congress chooses to provide to federal prisoners is, to borrow language from a dissent, a “gift[] that may be bestowed or withheld.”

It’s not that we are due a just outcome, but that we get as much or as little as the government deigns to give.

Frankly, none of this is either shocking or even unusual.  As Gamso calls it, it’s just another day in the bureaucracy, chugging along, doing its job.  No doubt the judges all felt pretty darn bad about the 8 extra plus years Gilbert would spend in prison that he wouldn’t have spent if other judges, maybe even a senator or two, had done their jobs a bit better.  But nobody is perfect, and they all have to live with rules.

It’s just that Gilbert will feel bad from his prison cell while the judges and everybody else will feel bad from their own bed.

Except maybe Senior Judge  James Clinkscales Hill.  One of the great things about senior judges is that they have no one to impress and no aspirations of future greatness.  They are free to speak truth to power, if they are so inclined. Judge Hill was feeling too free, given that Gilbert was in a prison cell.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.

Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.

This “Catch-22″ approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.

The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

Where was the government’s stroke of genius when it was argued by every lawyer in every court back in 1987 that it was wildly unconstitutional for some goofy things called Guidelines to bind the sentences imposed by Article III judges in a whole different branch of government?  Dang, but how obvious it all seems today.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

Of course, what do the old guys have to teach the younger judges, bent under the heavy weight of their responsibility to make sure that the bureaucracy survives intact.

Sitting atop this judicial trainwreck is Finality.  Every lawyer appreciates the concept of Finality, wrapped up in the platitude that there can be no justice without finality.  But we know it’s a lie. Finality is the protector of bureaucracy, which, it’s argued, would be horribly overburdened if the floodgates were opened.  What a nightmarish image of venal criminals with nothing else to keep their idle hands occupied, shoving writ after writ into prison mailboxes.  The bureaucracy would be overwhelmed, and never capable of doing its real job of administering the justice etched into it lintels.

Only Senior Judge Hill seems to get the idea that if they can’t get it right the first few times, it’s not a really good reason to protect and defend the system that got it so very wrong.  Yet we keep saying that our system, though not perfect, is the best there is.  And with that thought in mind, the majority will sleep well in their own beds.  They did no harm to Ezell Gilbert.  They just didn’t give him a gift.