Comments on: What’s up in the 8th http://briefcase8.com/2010/02/09/whats-up-in-the-8th-50/ Case analysis with an attitude Wed, 28 Jul 2010 15:43:42 +0000 http://wordpress.org/?v=2.9.1 hourly 1 By: Brian McGraw http://briefcase8.com/2010/02/09/whats-up-in-the-8th-50/comment-page-1/#comment-70166 Brian McGraw Thu, 11 Feb 2010 13:35:21 +0000 http://briefcase8.com/?p=2642#comment-70166 The approach taken by the panel in Castellon certainly saves the appellate courts an awful lot of work. Imagine if they opened the door, even a crack, to arguments that certain facts/circumstances merited a lower sentence within the statutory range. At the oral argument, only Judge Dyke was interested in any "back and forth". My interpretation of her position (she didn't put it quite this way, however) was that she has no desire to question a sentence such as this, but a PSI would make it easier for an appellate court to point to certain touchstones of thoroughness. The approach taken by the panel in Castellon certainly saves the appellate courts an awful lot of work. Imagine if they opened the door, even a crack, to arguments that certain facts/circumstances merited a lower sentence within the statutory range.

At the oral argument, only Judge Dyke was interested in any “back and forth”. My interpretation of her position (she didn’t put it quite this way, however) was that she has no desire to question a sentence such as this, but a PSI would make it easier for an appellate court to point to certain touchstones of thoroughness.

]]> By: Neil S. McElroy http://briefcase8.com/2010/02/09/whats-up-in-the-8th-50/comment-page-1/#comment-70073 Neil S. McElroy Tue, 09 Feb 2010 23:19:12 +0000 http://briefcase8.com/?p=2642#comment-70073 Perhaps trial attorneys should ask the courts what portions of the statute it has considered in fashioning the sentence. See Castellon. At least then, maybe, the court will be required to explain what considerations mandate the sentence. Then on an appeal, at least, appellate counsel has some findings in the record to argue that the court abused its discretion by failing to consider other factors. But I agree we need some guidance as appellate attorneys. I would be interested in hearing others' input. Others from both levels. Perhaps trial attorneys should ask the courts what portions of the statute it has considered in fashioning the sentence. See Castellon. At least then, maybe, the court will be required to explain what considerations mandate the sentence. Then on an appeal, at least, appellate counsel has some findings in the record to argue that the court abused its discretion by failing to consider other factors.

But I agree we need some guidance as appellate attorneys. I would be interested in hearing others’ input. Others from both levels.

]]>