Everyone who’s worked the defense side in a criminal drug case knows that a special agent (it’s always a “special” agent) who gives “expert” testimony about “drug jargon” is subject to about the same semantic constraints as Humpty Dumpty. Basically, take even the most benign, everyday topic of conversation (say, “tickets to the Dodgers game”), and you can cast it as having some drug-related meaning encoded in it, if you try hard enough. And they usually do try hard enough.
I borrowed a client’s cellphone on the way home from an arraignment to call my mother, as it was her birthday and, well, I forgot to call. Two years later, I’m reading through transcripts of telephone conversations and see my call to my mother, with the notation, “birthday refers to delivery of large quantities of narcotics.” True story.
Some ugly play here by the Eleventh Circuit in a case I came across that otherwise holds for a defendant who appealed the district court's denial of his motion to reduce his sentence under 18 U.S.C. §3582(c)(2):
If, after examining [the complete record] the district court cannot determine Hamilton's drug quantity with enough specificity to decide whether Amendment 750 lowers his guidelines range, then Hamilton is ineligible for § 3582(c)(2) relief.
United States v. Hamilton, 715 F.3d 328, 340–41 (11th Cir. 2013) (emphasis added). This, the Hamilton court explains, is because a defendant has the burden to show that the lower guideline range would apply if the listed amendment had been in effect at the time of original sentencing.
To review, then: A defendant who cannot meet his burden because the district court failed to make the clear finding it was required to make at initial sentencing is categorically barred from getting the relief he seeks. Got it.
I brought Scalia & Garner’s hardcover edition home to do a little reading this weekend. The blurb on the dust jacket begins like so: “Do legal documents change their meaning over time?” This question (like the string of similar, originalist-inflected rhetorical questions and false dichotomies that follow it) is obviously meant to pull on originalist intuitions.
Correct answers to these two questions give us a pretty straightforward prima facie answer to the question posed by the dust jacket, one contrary to the knee-jerk originalist intuition: Yes, legal documents change their meaning over time, just to the extent that the words they contain do.
So I guess my initial reaction that I’d at least like to see better trolling on the dust jacket. But maybe the QC in the actual text will be stronger. We’ll see…
Top of the Ninth (pdf) is a collection of criminal convictions and sentences reversed and other defense-favorable points, with links to practice- and case-related articles, blog posts, briefing, and other resources, all organized by topic and fully bookmarked.
To download the most recently updated version (updated Oct. 10, 2014), click here. If you find it useful, please share the link...