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January 28, 2005

Provocative ideas from the defense

In a prior post discussing Burdens of proof and a new due process of sentencing, I highlighted, and tried to build upon, the post by Steve Sady at the Ninth Circuit Blog arguing here that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  I now see that Steve has two more provocative posts on that blog about important post-Booker topics:

Though many of Steve's claims are contestable (and surely would be contested by many prosecutors), they provide important food-for-thought for everyone trying to sort through and develop claims in the post-Booker world.

January 28, 2005 at 03:08 PM | Permalink


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I respectfully disgaree with both Judge Panner and Steve Sady.
The question turns on whether Booker is a “procedural” or a “substantive” rule. If Booker is a new procedural rule generally it would not apply retroactively. Schriro v. Summerlin, 542 U.S. ___, ___, 124 S.Ct. 2519, 2523 (2004). A rule is a substantive if it alters the range of conduct or the class of persons that the law punishes. Rules that only regulate the manner of determining the defendant’s culpability are procedural. Id. Booker, since it merely alters the method of determining enhancement facts clearly fits within the definition of a procedural rule. There is, however, an exception to the general rule of nonretroactive application of new procedural rules: “watershed rules of criminal procedure implicating the fundamental fairness and accuracy in criminal proceedings.” As the Supreme Court stated in Schriro
New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." That a new procedural rule is "fundamental" in some abstract sense is not enough; the rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow, and "it is unlikely that any ... 'ha[s] yet to emerge.' " (Internal citations omitted.)
Some have suggested that in analyzing retroactivity of Booker, the “beyond a reasonable doubt” aspect of the Sixth Amendment holding in Apprendi/Blakely/Booker may fall within the “watershed rule” category. This theory focuses on the “beyond a reasonable doubt” aspect of Apprendi/Blakely. Although facially plausible under the authorities cited in Siegelbaum [In re Winship, 397 U.S. 358 (1970); Ivan V. v. City of New York, 407 U.S. 203, 205 (1972) (purpose of reasonable doubt standard is "to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"); Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift burden of proof to defendant).], while it may have a significance with respect to Apprendi and Blakely, both of which involve state proceedings, I suggest that this is an unfortunate digression irrelevant to the issue with respect to Booker. What those who espouse this theory overlook is the impact of the remedial decision and the precise issue presented to the court on a §2255 motion in which a Booker error is raised.
First, it must be acknowledged that for sentences imposed prior to Booker in which Apprendi/Blakely/Booker factors were implicated (sentence enhanced based upon facts not found by the jury or admitted by the defendant), a Sixth Amendment violation occurred under Booker. There is, however, a significant difference in the impact of Apprendi/Blakely on state court proceedings and Booker on sentencing under the USSG. In state sentencing procedures where Apprendi/Blakely factors are present, there are but two possible remedies: re-sentencing either (1) after a second jury trial to find the enhancing factors or (2) disregarding the enhancing factors. That is not, however, the case where sentences were imposed under the “mandatory” guidelines. On a §2255 motion brought under Booker, the only relief that a defendant can be granted is a sentence imposed under extant law. Unlike state cases, the issue before a federal court is: “Would I impose the same sentence if I were not bound to follow the guidelines?” The court is not required to either disregard the enhancing facts or submit them to a jury. The remedial aspect of Booker simply eliminated §3553(b)(1); it did not otherwise affect imposition of sentences at the sentencing court level. It left intact the guidelines themselves, which provide that the quantum of proof is “by a preponderance of the evidence,” USSG, §6A1.3 (PS), Commentary, which has been upheld by the Supreme Court. United States v. Watts, 519 U.S. 148, 154 (1997). In fact, post-Booker, with the guidelines being “advisory,” the sentencing procedure, although still considerably cabined by the SRA and the USSG, is no more than that which the sentencing judges have historically followed. See Witte v. United States, 515 U.S. 389, 399–401 (1995). Since the Supreme Court frowns on lower federal courts deeming its prior decisions overruled by implication, Agnostini v. Felton, 521 U.S. 203, 237 (1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that ‘[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’"), we must assume that the preponderance of the evidence standard remains the law when the court, as it still must, considers the USSG and those other factors that it takes into consideration in imposing a sentence under §3553(a). Consequently, the argument that the “beyond a reasonable doubt” aspect of the Sixth Amendment part takes Booker out of the exception to the non-retroactively applied procedural rules is totally irrelevant. Booker, in making the USSG advisory instead of mandatory without any change to the quantum of proof required to find the existence of enhancing facts, does not “[implicate] the fundamental fairness and accuracy of the criminal proceeding” any more than did Ring.

Posted by: Thomas J. Yerbich | Jan 28, 2005 3:54:27 PM

I disagree with Mr. Yerbich's analysis. Even if Booker were cast as a procedural case, it has substantive implications. If a defendant completed his acts prior to Booker, then he could look to the mandatory Guidelines for expected punishment. That expected punishment would be Blakely's statutory maximum. To apply Booker's remedial construction to that defendant would effectively raise the statutory maximum to that of the US Code. Consequently, Bouie should apply thereby prohibiting a wholly discretionary sentencing scheme for that defendant.
Finally, Justice Thomas, as part of the Booker Sixth Amendment majority, argued in his dissent that the preponderance standard was not to be followed. Needless to say, I am a defense lawyer.

Posted by: Peter Smythe | Jan 28, 2005 4:47:12 PM

In response to Mr. Smythe. First every procedural rule has substantive implications. That is not the test articulated by the Supreme Court. Second, the Stevens majority on the Sixth Amendment question did not hold the Sentencing Reform Act unconstitutional per se, only unconstitutional as applied, i.e., mandatory compliance with the Guidelines. It did not in any way affect §3553(a) so that the discretion of a sentencing judge is none-the-less cabined by §3553(a), including the requirement that the Guidelines must be considered.
I am not sure I understand the comment about a "wholly discretionary sentencing scheme." Even under the Booker remedial decision, a sentencing judge does not have total discretion in sentencing. The judge is still cabined by §3553(a) and the standard on appeal under §3742(f) that a sentence outside the guideline range must be "reasonable." Also of note is that Booker did not excise §3661, which prohibits the placing of any limitation on information concerning the background, character, and conduct of a convicted person.
I simply suggest that the situation vis-a-vis Booker is much closer to Schriro than Bouie. As for Justice Thomas' dissent, it is just that a dissent, not the law. Watts is still the law and the fact that a dissent believes that is incorrect, until a majority of the court holds otherwise, Watts must continue to be followed by the lower courts under Agostini (please excuse the misspelling in the original post).

Posted by: Thomas J. Yerbich | Jan 28, 2005 7:42:31 PM

In response to Mr. Yerbich, I disagree with his analysis. In the recent case of U.S. v. Hughes, the Fourth Circuit appears to begin to confront post-Booker sentencings in pre-Booker crimes. In note 6 the court states, "... the prejudice inquiry concerns what sentence the court would have imposed had it not committed the error of going beyond the facts found by the jury in imposing a sentence under the mandatory guideline regime then in existence." Also, in note 5, the Court notes that the defendant conceded jury-found facts, thereby implying that the evidentiary standard had been met. My point was and still is that Booker created a new sentencing regime that cannot be applied to pre-Booker crime as that would be violative of Bouie. A sentencing court today, in a pre-Booker crime, should not be held to have whole discretion to consider the maximum of the US Code when it could not have done so under the mandatory system and Blakely.

Posted by: Peter Smythe | Jan 31, 2005 3:46:39 PM

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