It’s 4:45am. I’ve been up for over an hour. I’m all dressed, spare one shoe. But I’m going back to sleep.
Dillon v. United States, this morning’s first case, certainly classifies as a mid-major. Law.com’s Legal Blog Watch predicted yesterday that by last night I’d be “already in line with a couple of PowerBars and an empty milk jug.” And while I find PowerBars unsavory and my lactose intolerance distances me from milk jugs even as latrines, I had intended to get in line for Dillon.
But I blinked. Instead of rushing out the door soon after my alarm went off, I spent an hour agonizing over obstacles surmountable or imagined: my Passover seder kept me up a little too late last night; I hear rain and thunder outside; the Court’s slated to hand down decisions this morning, hopefully several big ones; Dillon is just a sentencing case.
Dillon, however, is not just a sentencing case. It’s a sequel of sorts to United States v. Booker, in which the Court, by an ideologically scrambled 5-4 vote, held that the federal sentencing guidelines were advisory rather than mandatory. Dillon asks whether a federal judge may modify a sentence to go below the Guidelines even as he resentences a criminal per a new guideline range. In other words, as applied to Dillon‘s facts, does Congress’s retroactive lessening of the mandatory minimum sentence for a crack cocaine possession preclude a judge from also relying upon Booker to further reduce the sentence? Behind the curtain, the justices may have seen something sympathetic in Percy Dillon, as the Court has denied certiorari in similar cases, and the SG’s office recommended denial in this case.
Dillon may, then, go on my short list of arguments I should have attended. But whereas my marathon McDonald tailgate swallowed up my chances to see Skilling and Samantar, my excuses for staying home for Dillon may not add up–especially if the Court hands down no big opinions for me to write up today.