United States v. Victoria L. Ray

In this case, the functions of our three branches of government intersect at a novel point. The United States District Court for the District of Montana issued Standing Order No. DWM-28 (“Standing Order”). The Standing Order directed the United States Attorney, within 20 days after sentencing occurs in each criminal case, to assemble and file with the court clerk a report of sentence. The court clerk was to send these reports to the United States Sentencing Commission, in order to satisfy a reporting requirement that Congress has imposed on the courts. We are asked to decide whether the district court exceeded its statutory or inherent authority, or the limits of the Constitution, by issuing the Standing Order.

Before reaching the merits of that question, however, we must consider our jurisdiction to answer it. The United States argues that we have jurisdiction to consider its direct appeal from the district court’s order denying its motion to set aside the Standing Order in this criminal case, which was one of the first cases in which the Standing Order’s requirements were triggered, even though neither party has appealed with respect to the underlying judgment of conviction. In…

concurring in part and dissenting in part:

Mark Twain, an always insightful observer of human nature, once said that “work consists of whatever a body is obliged to do.” Of course, he also said that “work is a necessary evil to be avoided.” Most people possess a natural tendency to embrace Twain’s latter observation by shifting the burden to others, when they can. In this instance, however, the recipient of the assignment is unhappy about it and has declined to take it on without a fight, leaving us to decide whether the burden can be shifted.

Despite the explicit obligations placed by the statute upon district courts, and district courts alone, to “submit” sentence reports to the Sentencing Commission, the district court here ordered the U.S. Attorney’s office to assemble and compile the sentence reports of defendants in all criminal cases, leaving the district court with the relatively minor task of mailing the reports. The majority upholds the district court’s order by interpreting the “submit” requirement as either not explicitly requiring the district court to assemble and compile sentence reports, or in the alternative, as implicitly authorizing the district court to…

Dissenting in Part and Concurring in Part:

I. SUMMARY

The members of the panel see this case in three different postures.. Graber, J. would AFFIRM the district court order of July 29, 2003, denying the government’s motion to set aside Standing Order DWM-28. Clifton, J., DISSENTING IN PART *1005 and CONCURRING IN PART, would REVERSE the district court order of July-29, 2003, and remand to the district court with instructions to vacate Standing Order DWM-28. I would VACATE the district court order of July 29, because the district court lacked subject matter jurisdiction to hear the government’s motion to set aside the Standing Order. Therefore, I would necessarily reach the government’s alternative mandamus petition and would DENY the writ.

Because a majority of the panel finds the district court had subject matter jurisdiction in the context of the Ray case to enter its order of July 29, 2003 denying the U.S. Attorney’s motion to set aside Standing Order DWM-28, it is incumbent upon me on that issue alternatively to address the July 29, 2003 order before us on the merits, which in turn requires the analysis of Standing Order DWM-28 on its merits. In that analysis I concur with…

375 F.3d 980 UNITED STATES of America, Plaintiff-Appellant, v. Victoria L. RAY, Defendant-Appellee. No. 03-30339. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 9, 2004. Filed July 23, 2004. COPYRIGHT MATERIAL OMITTED Steven L. Lane, United States Department of Justice, Washington, DC, for the plaintiff-appellant. Anthony R. Gallagher, Federal Defender of Montana, Great Falls, MT, for the defendant-appellee. Robert S. Bennett, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for the amicus curiae. Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CR-02-00055-DWM. Before GRABER and CLIFTON, Circuit Judges, and BREWSTER, * District Judge. GRABER, Circuit Judge. 1 In this case, the functions of our three branches of government intersect at a novel point. The United States District Court for the District of Montana issued Standing Order No. DWM-28 ("Standing Order"). The Standing Order directed the United States Attorney, within 20 days after sentencing occurs in each criminal case, to assemble and file with the court clerk a report of sentence. The court clerk…