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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 12:20 pm 
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Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Boilermaker Rick wrote:
The law does not take any of that into consideration. The law is clear that there was a minimum sentence required. Why do you support a judge ignoring the actual law?


Not working, BRick, find another toy to play with.

Is this because you know I'm about to bring up Trumps travel ban being denied by the court?


Go ahead. There's no hypocrisy here: The judge's reasoning was prudent in this case, but the law is the [bad] law and the appellate court ordered the guy re-sentenced. This is all why I DB'd the law, not the appellate court, as I stated at the onset of your wet fart in this thread.

In the travel ban stuff, the prevailing judge's reasoning was poor, AND he ignored multiple layers of binding precedent.


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 12:55 pm 
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All activist judges feel their reasoning for it is prudent. Why are you ok with this judge blatantly ignoring the law of the land?

It sounds like you are saying that judges should sentence based on their opinion of whether laws are good or bad and not based the actual law. Is this correct?

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 1:14 pm 
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Boilermaker Rick wrote:
All activist judges feel their reasoning for it is prudent. Why are you ok with this judge blatantly ignoring the law of the land?



"Law of the land"? Do you mean the Constitution? Or the SCOTUS decision in United States v. Booker that struck down laws which make sentencing guidelines mandatory?

Quote:
It sounds like you are saying that judges should sentence based on their opinion of whether laws are good or bad and not based the actual law. Is this correct?


Do you know what "judicial review" is?


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 1:17 pm 
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Wait a minute. Are you saying that the mandatory sentencing in this case wasn't actually mandatory?

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 1:46 pm 
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Boilermaker Rick wrote:
Wait a minute. Are you saying that the mandatory sentencing in this case wasn't actually mandatory?


I'd have to look at the version of the statute in 2015 when the original sentence was handed down, because some laws are called "minimums" or even "mandatory" but they are in fact "guidelines". And Booker (and Blakely, in a sense) paint actual mandatory sentencing as unconstitutional.

Also, in his decision, the trial judge used the term "cruel and unusual", he was doing his duty of "judicial review". Do you not think that judges should be able to review the constitutionality of laws absent binding precedent, BRick?

(To head you off at the pass: The key difference here is there is no specifically binding precedent on the trial judge vis a vis the constitutionality of mandatory minimums given the relevant facts, whereas there were two kinds of binding authority acting on the District Court judge issuing TRO's on Trump's travel ban [circuit court and SCOTUS]).


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 1:54 pm 
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Juice's Lecture Notes wrote:
I'd have to look at the version of the statute in 2015 when the original sentence was handed down, because some laws are called "minimums" or even "mandatory" but they are in fact "guidelines". And Booker (and Blakely, in a sense) paint actual mandatory sentencing as unconstitutional.
I'm going to guess that in this case that the mandatory sentence, was in fact mandatory.

Juice's Lecture Notes wrote:
Also, in his decision, the trial judge used the term "cruel and unusual", he was doing his duty of "judicial review". Do you not think that judges should be able to review the constitutionality of laws absent binding precedent, BRick?
No. Follow the law as written and then have the constitutionality of the topic of mandatory minimums be handled by those at the state or federal level that deal with those kind of things.

If a pro-life trial judge handed out a sentence of probation to a guy who blew up an abortion clinic I wouldn't want him to hide behind his sole opinion on "cruel and unusual" punishment. I'd want the person who was found guilty to get the sentence that he is required to get.

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 1:58 pm 
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Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Also, in his decision, the trial judge used the term "cruel and unusual", he was doing his duty of "judicial review". Do you not think that judges should be able to review the constitutionality of laws absent binding precedent, BRick?
No. Follow the law as written and then have the constitutionality of the topic of mandatory minimums be handled by those at the state or federal level that deal with those kind of things.


Wait, so the lowest level District Court judge shouldn't have been able to block Trump's immigration EO on constitutional grounds?

Really, all judges deal with those things, BRick. There is no "minimum level for judicial review" hierarchy, that's why we have stare decisis.


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 2:13 pm 
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Juice's Lecture Notes wrote:
Wait, so the lowest level District Court judge shouldn't have been able to block Trump's immigration EO on constitutional grounds?
It's a temporary restraining order which is different, and less stringent then a binding decision.
Juice's Lecture Notes wrote:
Really, all judges deal with those things, BRick. There is no "minimum level for judicial review" hierarchy, that's why we have stare decisis.
They have to take it into account but they can't declare something unconstitutional like mandatory minimums. If they do they are being an activist judge.

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 2:18 pm 
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Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Wait, so the lowest level District Court judge shouldn't have been able to block Trump's immigration EO on constitutional grounds?
It's a temporary restraining order which is different, and less stringent then a binding decision.
Juice's Lecture Notes wrote:
Really, all judges deal with those things, BRick. There is no "minimum level for judicial review" hierarchy, that's why we have stare decisis.
They have to take it into account but they can't declare something unconstitutional like mandatory minimums. If they do they are being an activist judge.


So, there they are, two lawyers for all practical purposes, talking shop.

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 2:27 pm 
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Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Wait, so the lowest level District Court judge shouldn't have been able to block Trump's immigration EO on constitutional grounds?
It's a temporary restraining order which is different, and less stringent then a binding decision.


A TRO is the step just below the state-sponsored servitude of positive enforcement, you know that right?

Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Really, all judges deal with those things, BRick. There is no "minimum level for judicial review" hierarchy, that's why we have stare decisis.
They have to take it into account but they can't declare something unconstitutional like mandatory minimums. If they do they are being an activist judge.


You don't fully understand how our court system works. This is how court cases start their way through the system: Lower court makes a ruling and pins it on a constitutional issue, one party appeals to a circuit court who makes a ruling on that constitutional issue, and on and on, which is exactly what happened here.

The trial judge made a decision and pinned it to a constitutional issue, the appellate court reviewed that decision on the constitutional issue given the relevant facts and overruled. If it went further, the California Supreme Court would make a ruling on the constitutional issue raised by the lower court and ruled upon by the appellate court.


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 2:37 pm 
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Juice's Lecture Notes wrote:
Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Wait, so the lowest level District Court judge shouldn't have been able to block Trump's immigration EO on constitutional grounds?
It's a temporary restraining order which is different, and less stringent then a binding decision.


A TRO is the step just below the state-sponsored servitude of positive enforcement, you know that right?

Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Really, all judges deal with those things, BRick. There is no "minimum level for judicial review" hierarchy, that's why we have stare decisis.
They have to take it into account but they can't declare something unconstitutional like mandatory minimums. If they do they are being an activist judge.


You don't fully understand how our court system works. This is how court cases start their way through the system: Lower court makes a ruling and pins it on a constitutional issue, one party appeals to a circuit court who makes a ruling on that constitutional issue, and on and on, which is exactly what happened here.

The trial judge made a decision and pinned it to a constitutional issue, the appellate court reviewed that decision on the constitutional issue given the relevant facts and overruled. If it went further, the California Supreme Court would make a ruling on the constitutional issue raised by the lower court and ruled upon by the appellate court.
Ok. Cool. I'll go with that.

That makes you a big fan of activist judges since that is the same thing they do.

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 2:52 pm 
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Boilermaker Rick wrote:

That makes you a big fan of activist judges since that is the same thing they do.


No, "activist judges" disregard precedent (Trump immigration EO) and create rights and law from the ether (Citizens United pulling the free speech rights for corporations from the "freedom of the press" clause of the Constitution, for one, and if you want to go down that road, the right to an abortion via the due process clause).

It is the "disregarded binding precedent" part of "the Hawaii judge disregarded binding precedent to declare Trump's EO unconstitutional" that makes him an "activist judge", not that he pinned his decision to a constitutional issue.


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 2:54 pm 
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So then why do you support a guy who completely ignored the MANDATORY(as in, not optional) sentencing guidelines?

I am certain there is precedent for mandatory sentencing even if the concept may be a bad one.

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 3:00 pm 
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Boilermaker Rick wrote:
So then why do you support a guy who completely ignored the MANDATORY(as in, not optional) sentencing guidelines?


I'm not answering this again.


Boilermaker Rick wrote:
I am certain there is precedent for mandatory sentencing even if the concept may be a bad one.


You mean other than the Supreme Court declaring the federal version of it unconstitutional?

The California appellate court didn't list any binding precedent that I'm aware of, so I'm not sure there is one that is binding on the trial judge.


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 3:04 pm 
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Juice's Lecture Notes wrote:
You mean other than the Supreme Court declaring the federal version of it unconstitutional?
Link?

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 3:51 pm 
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Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
You mean other than the Supreme Court declaring the federal version of it unconstitutional?
Link?


https://supreme.justia.com/cases/federa ... nion2.html

Quote:
We here turn to the second question presented, a question that concerns the remedy. We must decide whether or to what extent, “as a matter of severability analysis,” the Guidelines “as a whole” are “inapplicable … such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.” Pet. for Cert. in No. 04–104, p. I.

We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U. S. C. A. §3553(b)(1) (Supp. 2004), incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, §3742(e) (main ed. and Supp. 2004), which depends upon the Guidelines’ mandatory nature. So modified, the Federal Sentencing Act, see Sentencing Reform Act of 1984, as amended, 18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004).


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 4:04 pm 
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Juice's Lecture Notes wrote:
Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
You mean other than the Supreme Court declaring the federal version of it unconstitutional?
Link?


https://supreme.justia.com/cases/federa ... nion2.html

Quote:
We here turn to the second question presented, a question that concerns the remedy. We must decide whether or to what extent, “as a matter of severability analysis,” the Guidelines “as a whole” are “inapplicable … such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.” Pet. for Cert. in No. 04–104, p. I.

We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U. S. C. A. §3553(b)(1) (Supp. 2004), incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, §3742(e) (main ed. and Supp. 2004), which depends upon the Guidelines’ mandatory nature. So modified, the Federal Sentencing Act, see Sentencing Reform Act of 1984, as amended, 18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004).

OH I see. You are using federal when this was a state case. I guess you aren't a states rights guy. :lol:

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 4:12 pm 
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Looks like he was a former Notre Dame basketball player. :lol:

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 4:13 pm 
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Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
Boilermaker Rick wrote:
Juice's Lecture Notes wrote:
You mean other than the Supreme Court declaring the federal version of it unconstitutional?
Link?


https://supreme.justia.com/cases/federa ... nion2.html

Quote:
We here turn to the second question presented, a question that concerns the remedy. We must decide whether or to what extent, “as a matter of severability analysis,” the Guidelines “as a whole” are “inapplicable … such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.” Pet. for Cert. in No. 04–104, p. I.

We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U. S. C. A. §3553(b)(1) (Supp. 2004), incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, §3742(e) (main ed. and Supp. 2004), which depends upon the Guidelines’ mandatory nature. So modified, the Federal Sentencing Act, see Sentencing Reform Act of 1984, as amended, 18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004).

OH I see. You are using federal when this was a state case. I guess you aren't a states rights guy. :lol:


:roll: I'm not going to again explain to you how our court system works. The SCOTUS decision is precedent, but it is not "binding", rather "persuasive" in its authority over a California court deciding a constitutional issue of a state law.

https://www.law.georgetown.edu/academic ... tFinal.pdf

Did you ask for precedent?

Boilermaker Rick wrote:

I am certain there is precedent for mandatory sentencing even if the concept may be a bad one.


Yes you did, and there it is.

That's enough for you today.


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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 4:16 pm 
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Well, the appellate court disagreed with you about it being precedent and told the judge he was wrong, so I'll trust them!

That's enough for me today!

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 Post subject: Re: Marc Kelly
PostPosted: Tue Feb 13, 2018 4:19 pm 
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Boilermaker Rick wrote:
Well, the appellate court disagreed with you about it being precedent and told the judge he was wrong, so I'll trust them!

That's enough for me today!


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