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January 13, 2005

Quick retroactivity thoughts

Many are asking, for understandable reasons, about the prospect of Booker's retroactive application. The simple answer is that Booker does not speak to the question, and thus some future case (soon?) will have to make a definitive ruling on this issue. However, as a number of commentators have already noted, the dueling opinions for the Court seem to provide conflicting tea leaves to read.

Justice Stevens' opinion for the Court suggests the Court is just "reaffirm[ing] our holding in Apprendi" which might suggest application back to 2000, while Justice Breyer's opinion for the Court speaks of Booker as if it is a "new rule" only applicable to pending cases.  Of course, even if Booker is a new rule, arguments can (and surely will) be made that this new rule fits into one of Teague's exceptions so as to be retroactive.  But, as others like TalkLeft here have suggested, offenders whose convictions and sentences are final should not find much that is encouraging in Booker. And, especially since the lower courts have already been consistently resisting claims that Apprendi and/or Blakely are retroactive, I forecast a lot of litigation from, and little relief for, prisoners with final convictions.

But, as I have suggested here and here, retroactivity should not be a concern only of the courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been unconstitutionally sentenced. Indeed, I think executive and legislative officials, as well as the US Sentencing Commission, have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants who, because of judicial retroactivity doctrines, may not get relief in the courts. But this is true ivory tower wishful thinking: I would be truly shocked if anyone talks at all about providing relief for old cases (beyond what courts might order), even though in a perfect world this would be a serious topic for conversation.

January 13, 2005 at 06:51 AM | Permalink

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» Booker and Fan Fan: Retroactivity from TalkLeft: The Politics of Crime
So who can seek relief after today's decisions in Booker and Fan Fan? And will they get anything? I hate to dash hopes, but my intial impression is that it doesn't look very promising for the vast number of defendants... [Read More]

Tracked on Jan 13, 2005 3:37:12 PM

Comments

Professor Berman, IM reminded of the movie my "cousin vinny" where the self acclaimed Attorney tried to engineer crafty solutions to law that he new nothing
about, and prevailed, you had to see it, i aggree that the
government should be concerned if a large number of defendants have been unconstitutionally sentenced.
It is my understanding the United States Supreme Court's decision in USA v. Booker has declared the Federal Sentence Guidelines invalid. This raises a very interesting issue. the defendants in this case are charged with both conspiracy and the substantive possession with the intent to distribute methamphetamine. Pursuant to the indictment it is alleged that the conspiracy involved 50 grams or more of methamphetamine and 500 grams of a mixture containing a detectable amount of methamphetamine. Thus the defendant's are subjected to the penalty provisions contained in 21 USC 841(b)(1)(A) (viii), as stated below.

21 USC 841(b)(1)(A) (viii) 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers; such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.


It is beyond dispute that all of the alleged methamphetamine involved in this case was a mixture in one form or another. There was no "pure" methamphetamine. However, the government relying on the Federal Sentence Guidelines has indicated that U.S.S.G. §2D1.1 would apply. The Note as stated below allows the government to determine the purity of the mixture and thus the "actual" weight of the methamphetamine contained therein.


NOTE TO DRUG QUANTITY TABLE located at U.S.S.G. §2D1.1

(B) The terms "PCP (actual)", "Amphetamine (actual)", and "Methamphetamine (actual)" refer to the weight of the controlled substance, itself, contained in the mixture or substance. For example, a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). In the case of a mixture or substance containing PCP, amphetamine, or methamphetamine, use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the PCP (actual), amphetamine (actual), or methamphetamine (actual), whichever is greater.


In sum, the application of the guideline note allows for an enhanced sentence for a methamphetamine mixture, less than 500 grams, based solely upon purity. (i.e. "actual"). The penalty provisions contained at 21 USC 841(b)(1)(A) (viii) makes no such distinction.
The issue of whether a defendant should be prosecuted based upon "mixture" or "actual" has been litigated in the federal courts. In all the cases I have read the Courts have rejected the defendant's argument based upon the application note contained at U.S.S.G. §2D1.1
This raised the ultimate question, does the Court's decision in USA v. Booker, declaring the sentencing guidelines invalid, apply to the entire guidelines, particularly, Note, U.S.S.G. §2D1.1.
Please let me know your thoughts.
Im a student at home who loves the "WHO"

Posted by: john | Jan 13, 2005 8:02:20 AM

I have a question for all the brilliant minds out there. If an offender's case is final, but his appeals have always been about the two year enhancment he recieved for Obstrution of Justice (A charge he did not plead quilty to, but the judge added. The FELT he lied.) What course of action do you think this offender should take?

Posted by: Cheyrl | Jan 13, 2005 8:08:32 AM

I am the mother of a son who was sentenced in 2003 to 20 years in federal prison. He did a plea bargain on charges of consipiring to manufacture GHB. According to the guidelines his sentence should have been 7 years. The judge added another 13 years due to other circumstances the judge thought were true. That my son was a leader and that through his actions people could have been harmed. My son is a non-violent offender who has only ever been charged with drug activity. When he was 17 he was in a car with someone who had a gun but he was granted youthful offender status on that charge. My son did not plead guilty or go to trial on the points that the judge increased his sentence upon. He had assigned counsel who objected to the lengthening of the sentence at the time. We asked the lawyer if we had any grounds to appeal the sentence and he said that-at the time--we did not. Does my son have any legal recourse in view of the Booker Fanfan Decision?????? Any imput would be appreciated. I am not a student, professor or attorney----just a concerned mother.

Posted by: Barb | Jan 13, 2005 9:19:45 AM

I am the mother of a son who was sentenced in 2003 to 20 years in federal prison. He did a plea bargain on charges of consipiring to manufacture GHB. According to the guidelines his sentence should have been 7 years. The judge added another 13 years due to other circumstances the judge thought were true. That my son was a leader and that through his actions people could have been harmed. My son is a non-violent offender who has only ever been charged with drug activity. When he was 17 he was in a car with someone who had a gun but he was granted youthful offender status on that charge. My son did not plead guilty or go to trial on the points that the judge increased his sentence upon. He had assigned counsel who objected to the lengthening of the sentence at the time. We asked the lawyer if we had any grounds to appeal the sentence and he said that-at the time--we did not. Does my son have any legal recourse in view of the Booker Fanfan Decision?????? Any imput would be appreciated. I am not a student, professor or attorney----just a concerned mother.

Posted by: Barb | Jan 13, 2005 9:20:54 AM

I am the mother of a son who was sentenced in 2003 to 20 years in federal prison. He did a plea bargain on charges of consipiring to manufacture GHB. According to the guidelines his sentence should have been 7 years. The judge added another 13 years due to other circumstances the judge thought were true. That my son was a leader and that through his actions people could have been harmed. My son is a non-violent offender who has only ever been charged with drug activity. When he was 17 he was in a car with someone who had a gun but he was granted youthful offender status on that charge. My son did not plead guilty or go to trial on the points that the judge increased his sentence upon. He had assigned counsel who objected to the lengthening of the sentence at the time. We asked the lawyer if we had any grounds to appeal the sentence and he said that-at the time--we did not. Does my son have any legal recourse in view of the Booker Fanfan Decision?????? Any imput would be appreciated. I am not a student, professor or attorney----just a concerned mother.

Posted by: Barb | Jan 13, 2005 9:22:00 AM

Assuming that Justice Stephen's opinion holds sway and circuit courts interpret Blakely and Booker as mere applications of the old Apprendi rule, what remedy for a defendant who was sentenced post Apprendi, appealed pre-Blakely without alleging an Apprendi violation, and then filed a 2255 post Blakely but pre-Booker making the Apprendi argument? Can one argue that Breyer's remedial decision makes advisory application of the guidelines a new rule applicable only to cases on direct appeal, and thus that the circuit is free to choose some other remedy for pre-Booker 2255 cases, such as release for time served?

Posted by: Dteeter | Jan 13, 2005 9:37:44 AM

Final conviction being defined as past the period of time an appeal can be filed?

Those who have appeals pending should be able to have sentencing revisited but run the risk of the judge imposing the same sentence?

It sounded like the matrix would be the sentence with no enhancements as the matrix takes into account prior convictions in the base level determination. Is that right? Which would mean no "relevant conduct" or in other words no time for something a defendant is not convicted of or has pleaded guilty to????

Posted by: Shelly | Jan 13, 2005 10:03:34 AM

Barb--I'm only a student, and you should definitely consult a (new) lawyer, but it seems to me that if your son in fact had a good claim under Booker and Fanfan, and your lawyer told you there were no grounds for appeal in 2003, you could explore a habeas petition based on ineffective assistance of counsel.

Posted by: AF-law student | Jan 13, 2005 3:55:17 PM

It would be hard to argue that any counsel who didn't pursue a Blakley/Booker argument about the Guidelines in 2003 was ineffective. Prior to Blakley, every Circuit Court had said that Apprendi didn't apply to the Guidelines. Therefore, there was no ground for appeal in 2003 - there was no Blakely/Booker argument to make. So I doubt an ineffective assistance argument will get you very far.

Hopefully, Barb, your son will get some relief from Booker being retroactive.

Posted by: JDB | Jan 13, 2005 4:33:51 PM

My brother was sentenced in 1992 for 30 years without parole on a conspiracy charge,he did have a jury but the judge took the case over and sentenced him, he had plead not guilty. He called his lawyer yesterday about the ruling. His lawyer told him that they were waiting on another ruling before they can pursue anything. Is there another ruling coming soon? What should we do in this situation.

Posted by: Carla W. | Jan 13, 2005 5:05:33 PM

I appealed a client whose sentence was enhanced to life at sentencing from what would be at the most 20 years had the judge not found the drug quantity at sentencing. Unfortunately this was in the Winter of 2004, pre Blakely and Booker. From what I am reading it seems my guy is screwed? RK

Posted by: Raymond Kohler | Jan 13, 2005 10:16:40 PM

AF and barb:
please allow me to rephrase what the appellate attorney who's working on presenting my son's 2255 said about the 'ineffective counsel' reference...
better to use the motion for paper dolls
sorry
mother of a fed prisoner *typically young male and drug offender*

Posted by: mary | Jan 15, 2005 11:14:13 AM

To begin with, I am a Ninth Circuit appellate attorney representing criminal defendants.

To preface the habeas retroactivity analysis, we need to look at what errors are really involved in Booker. With all the hoopla of what happens next as it applies to the trial level, I am not seeing any real commentary on what to do with cases on direct appeal, but the opinions give very good guidance. There are actually two different errors, the first is the Blakely error of judicial fact-finding that is subject to plain error review and we can use Freddie Booker's facts as a guideline (no pun intended) as to what a meritorious case looks like, since it does not appear he made a 6th amendment argument he presumably won on plain error grounds.

Secondly, however, Justice Breyer states that if there is not a 6th amendment (Blakely) violation, then harmless error review is used. So this means there is a second error established in Booker, which I am creatively calling a Booker error, which is the court erring by sentencing a defendant to a sentence mandated by an unconstitutional sentencing system which has now been struck down. Since harmless error is used for this, this means no objection was necessary, and I believe the government will have to prove beyond a reasonable doubt that the defendant would have received the same sentence had the judge used his discretion. Then, if the Booker issue fails the harmless error analysis, the review is for reasonableness. So while some appellants will have a Blakely issue, all current appellants have a Booker issue.

Regarding retroactivity on habeas, Booker of course didn't discuss it but nothing can be inferred from this because it wasn't before the court and any comment would have been non-binding dicta (see Tyler v. Cain). While I agree that there are slim hopes for Blakely error being retroactive on habeas given the Apprendi experience, and while it will still be an uphill battle, I think a Booker error is far more likely to meet a Teague exception since it is systemic and doesn't just go to a finding or two, and so it can better be argued that the new constitutional violation-free sentencing procedures are implicit in the concept of ordered liberty. So theoretically, everyone who was ever sentenced under the guidelines and is still in prison or on supervised release can bring a Booker claim if it is their first habeas, a second or successive will of course be harder unless the Supreme's declare it to be retroactive or if someone else can think of two cases acting together that mandate it, I can't offhand. Or course the harder Brecht standard would be used on habeas (at least in the 9th circuit), rather than harmless error. But the important part is, unlike the situation of Blakely error given Apprendi, there is nothing out there now precluding raising a Booker error using a Teague exception, so these cases can be brought until this idea is played out. Let the floodgates be opened!!!


Posted by: Greg Silvey | Jan 18, 2005 10:40:20 PM

I am another concerned mother. My son is due to be sentenced in March. Back in November, his lawyer had said that if only this (Booker) case were resolved, it would have a positive impact on him. Now that the guidelines process has been declared unconstitutional, and he has not yet been sentenced, will it do him any good?

Posted by: Margaret | Jan 22, 2005 4:56:36 PM

Can't anyone answer my question (see above)?

Posted by: Margaret | Feb 26, 2005 4:28:45 PM

Hi:

Can anyone advise me on this situation?

My husband was arrested and convicted in San Mateo County, CA Felony sales of methamphetamine.

He served a 120 day sentence in County Jail, did many weekends working for Sheriff Program, attended counseling and narcotics annonymous programs, had intensified probation, paid for fines/restitution, sheriff's work program, bail, private attorney, probation fees, lost three vehicles due to my husband being incarcerated-two lost due to loss of his income, and the other vehicle lost while parked at the designated parking for sheriffs work program-while he was out picking up garbage, the Bay's high tide totalled our car.

AFTER all of this loss...came his VICTORY !!

His appeal in the SF Appeals Court REVERSED the San Mateo conviction !! San Mateo DISMISSED the case.

Not one dime has been recovered by him, nor any of the time he spent in jail or working for the Sheriff's Program.

Some VICTORY????

NOW...my husband is in Santa Clara jail for violating probation on another case (his one and ONLY criminal conviction) for which was also part of the time that he spent in San Mateo County Jail-as Santa Clara had a "hold" on him during his incarceration in San Mateo- my question is- Can my husband apply credit for the REVERSED/DISMISSED 120 days of time served towards the felony probation violation that he is currently in county jail for?

Any help or reference would be so GREATLY appreciated!!!!

Thanks A Bunch !!!

Janet Tipper

[email protected]

Posted by: Janet Tipper | May 20, 2006 1:47:56 PM

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