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January 14, 2005

Judge Paul Cassell speaks first again!!

I should not be surprised that the always speedy and brilliant US District Judge Paul Cassell, who got in the amazing first written word in Blakely with his Croxford opinion, has now gotten in the first word on Booker through US v. Wilson, Case No. 2:03-CR-00882 (D. Utah Jan. 13, 2005) (available here).

Here's the key opening of a 39-page opinion that is today's (first?) must read:

In light of the Supreme Court’s holding, this court must now consider just how “advisory” the Guidelines are. The court has before it for sentencing defendant James Joseph Wilson, who has pled guilty to armed bank robbery. In view of his lengthy criminal record and his brandishing of a sawed-off shotgun at several tellers, the Guidelines advise a prison sentence of no less than 188 months. What weight should the court give to this recommended sentence? This issue of the weight to be given to the advisory Guidelines will, of course, recur in all of the court’s sentencings unless and until Congress responds to Booker.

Having reviewed the applicable congressional mandates in the Sentencing Reform Act, the court concludes that considerable weight should be given to the Guidelines in determining what sentence to impose. The Sentencing Reform Act requires the court to impose sentences that “reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, [and] protect the public.” The court must also craft a sentence that “afford[s] adequate deterrence to criminal conduct” and “protect[s] the public from further crimes of the defendant.” Finally, the court should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

Over the last 16 years, the Sentencing Commission has promulgated and honed the Guidelines to achieve these congressional purposes. Congress, too, has approved the Guidelines and indicated its view that Guidelines sentences achieve its purposes. Indeed, with respect to the congressionally-mandated goal of achieving uniformity, the Guidelines are the only way to create consistent sentencing as they are the only uniform standard available to guide the hundreds of district judges around the country. Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons. In this particular case, the court will follow the Guidelines and give Wilson a sentence of 188 months.

January 14, 2005 at 10:10 AM | Permalink

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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 3:11:12 PM

Comments

Crim defense atty
8th Circuit
Parsimony portion of
opinion is very helpful.
I have my first post-
Booker sentencing on
Tuesday. Judge is
fighting us really hard
on departure.
Maybe the rallying cry
of defense attys now
should be "PARSIMONY
NOW!" Thanks!

Posted by: Jeremy M. | Jan 14, 2005 10:52:53 AM

Wait for argument on post-Blakely cases: 3 months
Wait for decision in Booker & Fanfan: 4.5 months
Wait for first post-Booker decision by Judge Cassell: 24 hours
Title assigned by Judge Cassell to his post-Booker ruling ("Memorandum Order and Opinion Giving Great Weight to the Sentencing Guidelines in Determining Appropriate Sentences"): PRICELESS

Posted by: Sarah | Jan 14, 2005 11:28:44 AM

I am someone who has been following Blakley/Booker/fanfan since I have a sibling on direct appeal in the 11th circuit.

I have some questions that I want to hear what you guys have to say

Is it best to act fast on these new opinions, or wait to see what happens to other cases first?

Is it somewhat of a free for all where the judges can do what they want until congress steps in???

Posted by: Daniel N | Jan 14, 2005 11:31:54 AM

I am not a lawyer or a law student, just trying to out feelers out to gather information

Posted by: Daniel N | Jan 14, 2005 11:33:51 AM

Despite the oft-heard (and well justified) complaints that the Guidelines are sometimes too harsh, 188 months in this case seems about right.

Posted by: Marc Shepherd | Jan 14, 2005 11:54:00 AM

In response to Daniel N.'s questions:
No, I don't think it is a free-for-all right now. Judges still are required to consider the Guidelines, and they are required to impose a sentence sufficient to satisfy the goals identified by Congress. Further, appellate courts will retain the ability to reverse judges who impose "unreasonable" sentences. My guess is that many, many judges will simply do as Judge Cassell did and impose the Guidelines sentence; indeed, in many cases, the sentence suggested by the Guidelines is an appropriate one. In cases where the Guidelines range seems too high or too low, I would guess that judges who might previously have felt unable to depart will do so, but within reason. Of course, you will have some who will give lip-service to consulting the Guidelines and then do whatever the heck they want. Until we get a Circuit-by-Circuit breakdown of how the appellate courts are going to react to sentences outside the Guidelines range, I think it is impossible to predict.

Which brings us to your question about whether to wait for further guidance or move forward now. A lot of us are dealing with that question right now. I think that depends on a few factors: (1) Who is your judge? Is he/she someone who tends to depart upward or downward? Has he/she spoken out in favor of or against the Guidelines? (2) What Circuit are you in? How did your Circuit deal with the post-Blakely power vacuum? (3) Is your defendant at risk for any reason by waiting? For instance, a detained defendant who is not getting appropriate drug treatment or other services at the detention center could become a problem. Or a defendant out on bond who is perilously close to getting into trouble again should probably get sentenced ASAP. On the flip side, waiting is always good if you have a defendant who is building a record that could get him a "departure" (whatever that means now) on the grounds of post-offense rehabilitation, and "awaiting further guidance from the higher courts" is a good excuse for waiting.

Unfortunately, Daniel, I don't think anyone has the answers you need. Even Prof. Berman, who was described on NPR the other night as a "sentencing guru" doesn't really have a working Ouija board. If your counsel is good, and knows the judges and the Circuit you're dealing with, rely on his/her judgment.

Posted by: Sarah | Jan 14, 2005 12:37:36 PM

Thanks Sarah, that's pretty much the answer I expected....I know the sentencing Judge seemed like he wanted to depart downward, but had no legal grounds to do so without fear of being overturned (If that makes sense). He explicitly said on the record after one of the sentencing witnesses moved the courtroom while asking for a light sentence, that there was nothing he could, he was bound by the guidelines. He gave the lowest sentence and lowered the federal level as well.

As always I deffer to the attorney who is handling the appeal, and I know he is pondering this as well.

I just really wanted to see this question asked in the forum for those of us not in the field of law.

Posted by: Daniel | Jan 14, 2005 12:45:42 PM

So, does this mean that defendants who were unconsitutional enhanced prior to Blakely, but are currently on direct appeal are in fact going to be sentenced under the guidelines without the enhancements? Will they actually get the "sentencing windfall" that the DOJ has been complaining about because if enhancements are unconstitutional, but the judges still operate under the guidelines, then such a windfall should occur. Any opinions?

Posted by: Laura | Jan 14, 2005 1:16:38 PM

OKAY, I need this to be broken down into a clear factor. is a descion made that it will not apply retro or is this a wait 4 congress to decide?

Posted by: retro | Jan 14, 2005 3:28:26 PM

My son pled guilty under a supposed "plea bargain" to conspir. to manuf. a controlled substance and 2 gun charges of which the predicate charges were dropped. He received 45+ years. Will this decision possibly help him to get a reduction?

Posted by: Elizabeth | Jan 14, 2005 6:38:29 PM

I am a daughter of a late WWII Veteran and I am hopeful that this ruling will bring some justice back to this country and allow for more reasonable sentencing guidelines that are more appropriate, considering the human life span.

The judicial system in America is so seriously flawed. I am optomistic that this change will only be the beginning of correcting America's corrupt judicial system.

Far too many judges abuse their power of authority, and they too need to be regulated.

I trust that my brother, Bert Reghetti, can benefit from this decision.

Thank you Blakely, Booker, FanFan, and their attorneys for your devotion and dedication, for without it many individuals would still have to suffer.

"We the People."

Respectfully,


Dr. Gina Reghetti, D.O.
Osteopathic Family Physician & Surgeon

Posted by: DR. GINA REGHETTI | Jan 15, 2005 9:46:46 PM

Further, appellate courts will retain the ability to reverse judges who impose "unreasonable" sentences
=================
How often to you realistically think an appellate court is going to do that? I, for one, am utterly flabbergasted by this decision. On one hand it's unconstitutional for a judge to enhance a sentence using facts not proven beyond a reasonable doubt in the case but on the other hand he can go ahead and do it anyway because it's "advisory"? Am I reading this right?

Posted by: Wallace Francis | Feb 3, 2005 7:08:10 PM

I AM A LPN STUDENT, WORK A THE WILLIAM F.RYAN CTR, AS A DATA ENTRY CLERK, MY HUSBAND IS ENCARCERATED FOR ROBBERY IN THE 2ND DEGREE WITH 2 OTHER 4TH DEGREE CHARGES I KNOW THERES BEEN A CHANGE BY THE SUPREME COURT IN PLACING MANDATORY SENTENCE GUIDELINES WHAT WILL BE HIS, HE JUST FINISH SEVING 12 YEARS IN NEW YORK STATE FOR A (B) ROBBERRY HE IS STILL ON PAROLE FOR ANOTHER 5YRS. HE IN IN THE PASSAIC COUNTY JAIL NOW, WHAT IS HE FACING SHOULD WE ACQUIRE A PRIVATE ATTORNEY. THESE ARTICLES FROM THE WEBSITE HAVE BEEN A GREAT HELP TO ME. IM NOT AS EDUCATED OR LEGALLY TRAINED AS THE REST OF YOUR READERS BY I AM SO DESPERATE TO HELP BY HUSBAND, WHAT AND HOW MUCH TIME ARE WE LOOKING AT WHEN IT COMES TO STATE GUIDELINES.THANKYOU

Posted by: Estela Rivera | Feb 9, 2005 10:07:03 PM

As now judge and former AUSA Cassell knows from experience the sentencing guidelines are influenced by the AUSA on the case and the pre-sentencing report which is influenced by the case AUSA.

Judges should review the decision of the pre-sentencing officer and the influence of the AUSA and the disregard of the defense in the pre-sentencing proceedure.

Im sure Judge Cassell is an excellent judge since he was involved and left the US attorneys office.

Posted by: Bill Stokley | Feb 21, 2006 6:29:32 PM

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Posted by: | Oct 14, 2008 6:51:59 AM

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