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January 14, 2005

Judge Cassell proves his brilliance, who's next?

I now have to go off line for most of the afternoon to travel to do my faculty workshop at the UNC School of Law, but I have had a chance to skim Judge Cassell's Wilson opinion (here) and have to quickly comment that it is absolutely brilliant (even in those spots when I think it is wrong).  No offense to the wise Nine in DC, but Judge Cassell has advanced the federal sentencing world far more in a day than SCOTUS could manage in sixth months.  (Is it too early to throw Judge Cassell's name into the CJ Rehnquist replacement sweepstakes?)

I will have lots of commentary on Judge Cassell's work late tonight and throughout the weekend.  But for now I must just stress that, as he did after Blakely through Croxford, Judge Cassell in Wilson has framed and defined the issues for debate in the wake of Booker.  And I am certain his views on these issues in Wilson, just as his views in Croxford, will not be universally embraced.  Indeed, I am so excited not only to have a chance to read Wilson closely, but to see what Judges Bataillon and Gertner and Goodwin and Holmes and Lynch and Weinstein and all the other fine folks having to work this through on the ground have to say in response.  The new federal sentencing world will be built opinion by opinion, and I suspect the new world will both be beautiful and grotesque (at least to my tired eyes).

January 14, 2005 at 10:41 AM | Permalink

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» Judge: Follow Guidlines in All But Exceptional Circumstances from TalkLeft: The Politics of Crime
U.S. District Court Judge Paul Cassell has rushed to press with the first post-Booker decision and it's awful. You can read it here. As one lawyer e-mailed us, "Read it and Weep. The radical right has been planning for this."... [Read More]

Tracked on Jan 14, 2005 3:07:00 PM

Comments

[lawyer]

Wow, I had thought that Justice Breyer's remedy opinion was a remarkable job of making the merits holding of Booker mean as little as possible -- but this opinion carries it even further. After Justice Breyer's opinion, it was still possible to believe that Booker meant something, and that the Breyer opinion's recognition of judicial discretion actually would matter. But now Judge Cassell's opinion takes us all the way back to pre-Apprendi, though very thinly veiled. If Judge Cassell's view of the governing legal standard is adopted by other judges and appellate courts, then we have non-guidelines sentences where, and only where, the guidelines would have authorized a departure. It's possible that Judge Cassell means something a teeny bit different from that -- that he would do a non-guidelines sentence in some extremely extremely extremely rare case where a departure would not have been authorized -- but not very different, at least. So the last several years, from Apprendi to Booker, were just a strange dream, and now we've woken up back where we started!

Posted by: Sam Heldman | Jan 14, 2005 12:08:03 PM

At the risk of reading tea-leaves, I think Judge Cassell made it pretty clear that he would have given Angelos a much lower sentence if the guidelines weren't mandatory. The question is how many cases like that are out there.

Posted by: Marc Shepherd | Jan 14, 2005 12:23:27 PM

I guess the reason I read Judge Cassell's opinion in the way I do, is that a judge who was actually interested in whether to issue a non-guidelines sentence would have ended the opinion by saying, "But of course, the new post-Booker system allows me to consider facts and arguments that would not have been relevant under the guidelines, and which therefore the parties have had no opportunity yet to present. So, before announcing sentence, I give the parties __ days to present any such arguments." The fact that he did not do so, it seems to me, is what leads to the conclusion that he would go outside the "advisory" range only when the guidelines would have permitted a departure.

This sort of half-baked instant commentary is what you get, I guess, in response to an instant judicial opinion!

Posted by: Sam Heldman | Jan 14, 2005 12:32:30 PM

While the result may be pleasant, this is a horrible opinion. It completely disregards the clear will of the majority of the Supreme Court. Blakely and Booker are formalistic opinions whose force can be blunted by formalistic responses (ie Bowman fix, etc). But the Wilson case just ignores the whole concept behind Blakely.

What do you think will make a case "unusual" such that Judge Cassell will sentence outside of the Guidelines? (slip-op at 38) FACTS found by a JUDGE!!

Judge Lynch's opinion this past summer in Emmenegger is a far more appropriate application of advisory guidelines. The resulting sentences may be more problematic in various ways but it at least deals with the system acknowledging that Blakely exists.

Posted by: yipe | Jan 14, 2005 1:03:39 PM

"If Judge Cassell's view of the governing legal standard is adopted by other judges and appellate courts, then we have non-guidelines sentences where, and only where, the guidelines would have authorized a departure."

Sam--I think there's another important instance in which we can have non-guideline sentences: when following the guidelines would lead to a Blakely violation.

As I wrote in a previous comment, I imagine no circuit will *require* district courts to create an Blakely problem by imposing a fact-based enhancement that increases a sentence beyond its original guideline range. If a district judge says, "The government asks me to impose an enhancement based on X fact, but since that fact was neither admitted by the defendant nor determined by a jury, I decline to do so, see Blakely," there's no way an appellate court would find that unreasonable (and if they did, I'd guess they'd be swatted down by the Apprendi five).

The problem arises when a judge chooses to follow the guidelines despite creating a Blakely problem. If courts of appeals follow Cassel and rule that guideline ranges are presumptively mandatory (as I think most will), does Blakely prohibit judges from imposing sentence-increasing enhancements based on judicial factfinding? That question might have to go back to the Supremes. If the answer is no, we're very close to where we were, except I am sure that (absent the departure of one of the Apprendi five) judges will be allowed to avoid imposing fact-based enhancements if they choose.

I can't tell from Cassel's opinion whether his case is in this latter, problematic, category, because he never states whether the gun enhancement was admitted by the defendant. Or did I just miss it?


Posted by: AF-law student | Jan 14, 2005 1:16:02 PM

It doesn't seem that any of the facts were in dispute in Wilson's case, so legits questions about how judges are to find facts at sentencing now weren't raised. I'm sorry to say, AF, that I think there are no Blakely problems with judicial factifinding at sentencing, provided that they don't increase a sentence beyond the statutory (US Code) maximum.

Marc - The problem in Angelos wasn't the Guidelines, but statutory mandatory minimum sentences (specifically, the stacking of them), which may or may not survive Blakely/Booker. I'm not sure if Cassell got the same sort of sentence out of the Guidelines it would be "unusual" enough to require a non-Guidelines sentence.

Posted by: JDB | Jan 14, 2005 3:03:19 PM

JDB--If appellate courts follow Cassell, and hold that "court[s] [may] only depart from the Guidelines in unusual cases for clearly identified and persuasive reasons," I think there is a colorable argument that increasing the guideline range based on judicial factfinding violates Blakely. I'm not sure on what grounds you disagree, given that you believe there are "legit questions about how judges are to find facts at sentencing now."

Posted by: AF-law student | Jan 14, 2005 3:34:48 PM

I'll agree with the "horrible opinion" comment. Kind of rediculous.

Posted by: joe | Jan 14, 2005 4:12:19 PM

AF - I think it all comes down to what the Circuit Courts say when reviewing post-Booker sentences. The only way judicial factfinding would violate Blakely/Booker is if the "advisory" guidelines morph back into "de-facto mandatory" guidelines. If that happens, yes, then I think there is a colorable argument that judicial factfinding violates Blakely/Booker. They cynic in me, however, thinks the Circuits will be clever enough to make sure there is enough wiggle room for the district courts to avoid the Guidelines to keep a majority of the Supreme Court from finding that the Guidelines are de-facto mandatory.

There are still issues regarding factfinding procedures under the advisory Guidelines because it's not clear what effect those findings would have on a sentence. Can a district court avoid resolving a factual dispute if it can back up the sentence imposed as reasonable? It seems to me that a situation could develop as it has for supervised release revocations (at least in the Fourth Circuit), where once one violation is proven the district court really doesn't need to resolve any others because it can revoke and has complete discretion in imposing sentence. Of course, that would be the opposite of the de-facto mandatory guideline situation.

Who knows? I'm ready for the long weekend, I know that much!

Posted by: JDB | Jan 14, 2005 4:35:28 PM

I read the Wilson opinion very closely. I did not see a Blakely issue because most, if not all, of the facts upon which the sentence was based were stipulated. I do not think he was judicially fact-finding but rather justifying on the record why his sentence on the low end of the spectrum, and supported by the Government, was reasonable. Perhaps as a blue print for other judges to follow as they hand out post-Booker sentences.

Posted by: Bob | Jan 14, 2005 8:16:24 PM

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