Moore v. United States (07-10689) and order list

October 15, 2008 Supreme Court Update

Greetings, Court Fans!
We're barely a week into the new Term, and already we have an opinion for you from Tuesday – although it's just an unsigned per curiam opinion unanimously dispensing of a case without briefing or argument. Moore v. United States (07-10689) is a follow-up to last Term's decision in Kimbrough v. United States, in which the Court held that federal judges have discretion to consider the disparate treatment of crack versus cocaine powder under the federal sentencing guidelines when imposing sentences on criminal defendants (the guidelines treat crack much more harshly). Though Moore was sentenced for dealing crack before the Court issued Kimbrough, he asked the judge to note the disparity and adjust his sentence downward. The judge refused, saying "[i]t isn't the judges" who get to decide such matters, but Congress. The Eighth Circuit affirmed, but the Court later GVR'd the case for further review in light of Kimbrough. On remand, the Eighth Circuit affirmed again, holding that it presumed the district court knew it had discretion to depart downward but refused to exercise it. Moore again sought cert, arguing that the judge's comments at sentencing indicated that he thought he had no discretion at all. Remarkably, the Solicitor General agreed, as did the Court. So, the Court has summarily reversed and sent the case back to the district court for resentencing, though it expressed no view as to how the trial judge should exercise his discretion.
The Court also issued an order list Tuesday, in which it granted cert in one new case. Carlsbad Technology, Inc. v. HIF Bio, Inc. (07-1437) asks a question sure to be near and dear to Justice Scalia's heart (but almost no one else's), as it touches upon the reviewability of remand orders to state court, a subject he's written about frequently: "Whether a district court's order remanding a case to state court following its discretionary decision to decline to exercise the supplemental jurisdiction accorded to federal courts under 28 U.S.C. § 1367(c) is properly held to be a remand for a ‘lack of subject matter jurisdiction' under 28 U.S.C. § 1447(c) so that such remand order is barred from any appellate review by 28 U.S.C. § 1447(d)."
In addition, there were two rare dissents from denials of cert. Scalia dissented from the denial in Marlowe v. United States (07-1390), another sentencing case. Marlowe, a prison guard, was convicted of deprivation of constitutional rights when he failed to provide medical care to an inmate, causing his death. The jury, however, was not asked to make a finding regarding Marlowe's mental state as to the death. Instead, the judge found that he had a mental state consistent with second-degree murder and sentenced him accordingly. On appeal, the Sixth Circuit presumed this sentence was reasonable and upheld it. Scalia dissented from the Court's denial of cert because, as he put it, the jury found facts that were consistent only with involuntary manslaughter, and the sentence was thus inconsistent with the command of United States v. Booker that sentencing facts be found by juries, not judges. Scalia would have granted cert either to apply Booker or to announce that the decision has been overruled.
The second dissent came from the Chief, joined by Justice Kennedy, in Pennsylvania v. Dunlap (07-1486). The Chief and his clerks had a bit of fun with this one; the case involved a drug bust, and the start of the dissent reads like a hard-boiled noir arrest sequence, with the officer in a troubled neighborhood witnessing a suspicious transaction (though no drugs were visible) that leads to the arrest and seizure of crack cocaine. The Pennsylvania Supreme Court nevertheless invalidated the arrest, holding that a single, suspicious transaction in a high-crime area did not give rise to probable cause because the officer did not see any drugs, there was no tip from an informant, and the defendant did not flee arrest. The Court declined to review the case, and the Chief wrote in dissent to defend the concept of probable cause as something practical and reasonable and not merely for legal technicians. For the Chief and Kennedy, an officer experienced in drug interdiction should have been able to rely on his experience and common sense, and they would have granted cert and reversed the Pennsylvania Supreme Court.
That's it for now. Until next time, thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400