Per Se Unreasonable Flashcards
But it’s within our discretion to overlook forfeiture for the purposes of harmlessness. Why shouldn’t we do so here and hold that granting your client’s motion would be per se abuse of discretion?
For three reasons, your honor.
• First, the district court is better situated to make that decision in the first instance, as it has the expertise and familiarity necessary to do so.
• Second, there is significant district court authority for the proposition that circumstances similar to those Mr. Weller has raised can be extraordinary and compelling. Those were cited on ER 8 to 9 and 12 to 13. So, win or lose on the merits, Mr. Weller’s claim is not so implausible that remand is unnecessary.
• Third, when courts of appeals have deemed a set of circumstances per se not extraordinary and compelling, it is either because of some legal bar to considering the circumstance—as in Hunter and Thacker—or because of a factual development undermining the claim, as when vaccination undermines a COVID-19-based claim. Otherwise, courts of appeals have generally left the decision to the district courts, as the Second Circuit did in Brooker.
