Tuesday, November 02, 2010

U.S. v. Leal-Felix (9th Cir. - Nov. 1, 2010)

As my father -- whose family was from Iowa -- used to say:  "They grow 'em big in Iowa."

Judge Goodwin writes an eight-paragraph opinion in a sentencing guidelines case.  To which Judge Bennett, sitting by designation from the District of Iowa, responds by authoring a twenty-page, single-spaced dissent.  Complete with table of contents.

Nor am I the only one to recognize this contrast.  Judge Bennett begins his dissent with the following:

"With all due respect, because whether a “citation” is an “arrest” within the meaning of U.S.S.G. § 4A1.2(a)(2) is an issue of second impression across the breadth of the federal courts, it deserves more serious analysis than the judicial sleight of hand performed by the United States Court of Appeals for the Seventh Circuit in Morgan and adopted by this court today. Like the classic street shell game, Thimblerig, which used three thimbles or walnut shells and a pea—the so-called “short con,” because it was quick and easy to pull off—Morgan palmed the pea, so that plain meaning, a common sense and legally correct view of the word “arrest,” and fundamental fairness are no longer under the shells. Surprisingly, Morgan managed to pull off this trick with a single paragraph. I respectfully dissent from falling for the con."

I'm not sure the Seventh Circuit's opinion -- or the Ninth's -- really qualifies as a "con".  But I agree that the analysis here is relatively skimpy.  There's more than initially meets the eye.  Ditto for the shell game.