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January 12, 2005
The remedy mess
Rightfully, I am already being asked by many "Now what?" Of course, the answer to that question has many institutional permutations: Now what for Congress, now what for the Sentencing Commission, now what for state actors of all sorts. But I am especially scratching my head on the "now what" question for all the federal cases "in the pipeline." Here's the cryptic final paragraph from Justice Breyer on these issues:
As these dispositions indicate, we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.... That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain error" test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
I must admit that I am not completely sure what this means for on-going cases, except that we are likely to have lots and lots of litigation over what this means for on-going cases. In addition, it seems that, as suggested in my prior Rule by Judges post, the instruction that "reviewing courts [are] to apply ordinary prudential doctrines" will ensure that appellate courts have enormous sentencing powers in the days ahead.
I am especially eager to hear from litigants and lower courts personnel if they are any concrete idea what this means -- or, more generally, on how advisory guideline sentencing is really going to work.
January 12, 2005 at 12:19 PM | Permalink
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Surveying the blog scene, this is shaping up to be an active week in blogshere: First and foremost, The US Supreme Court's announcement of the Booker and Fanfan decisions has created much buzz in the legal blogs. You will hear... [Read More]
Tracked on Jan 12, 2005 3:58:48 PM
Comments
It looks to me like it will start off pretty much the way that guideline sentences always worked. The government will provide a position paper to the Probation Office, the defendant may object, and the Probtation Officer will file a presentence report. The parties will then, if they object, file briefs stating their sentencing positions. The judge can (should?) then hold a sentencing hearing to decide the guideline range. The prosector, on most issues, will have the burden by a preponderance. (That will include proof of relevant conduct, such as extra drugs, fraud, etc.) The court will then decide the guideline range, and either sentence within the range, or explain why he/she is sentencing outside the range. If the departure from the range is slight, nobody will appeal it (though the guideline calculations may be appealed, if the defendant disagrees, or the prosecution thinks a substantial error was made). If the departure is substantial, the disaffected litigant will appeal.
Posted by: A prosecutor | Jan 12, 2005 12:28:50 PM
I am a criminal defense attorney. Any ideas of what Booker and Fanfan mean for collateral review? Does Summerlin mean that Booker and Fanfan do not assist Defendants whose judgments are now final? Thanks.
Posted by: Anne K. Albright | Jan 12, 2005 12:36:09 PM
I have more general concern: I had though that Booker would resolve the question whether Scalia's dissent in Neder -- i.e., failing to submit elements for jury determination is structural error -- applies to Apprendi/Blakely errors.
Since the Court excised the Guidelines, anyone who preserved a 6th Amendment violation will likely get a remedy, but the remedy will be to remand for resentencing under the "severed" regime. Does anyone have an opinion as to whether Booker/Fanfan affect Neder?
appea
Posted by: Steve Sanders | Jan 12, 2005 12:36:57 PM
At the end of Breyer's opinion pg. 25 he indicates that this opinion will apply to all cases on direct review. This must mean they regard this as a "new rule". How then could the Stevens opinion continually reference the fact that this is an application of Apprendi and within the "Apprendi line" of cases? Wouldn't someone who AT LEAST preserved the Apprendi issue at sentencing and appeal have the right to relief? This is rather confusing. I am not an attorney but a paralegal who works with pro-se defendents. Any thoughts?
Posted by: Anne | Jan 12, 2005 12:43:40 PM
I know a mail fraud case where the defendent and the federal govt agreed in a plea bargain to put forth the sentence increasing and decreasing facts before a judge.The facts in the plea bargain give the defendant a sentence of 18 months by applying the guidelines.This is a case that has been going on for 5 years. The federal judge has stated several times that there has been "serious deprivation of defendant rights in this case".
My questions:
1.
Will the new decision limit the defendant's exposure to a max of 18-24 months based on the conduct that the defendant agreed to in the plea?
2.
or is the 18-24 mths itself not valid as they were based on the guidelines?
3.
The defendent is not asking for a new sentencing jury. Can the govt ask and get a sentencing jury and if so will that deprive the defendent the right to not having double jeopardy (the govt could rework their faults from the first sentencing before the judge)
4.
Can the defendent put forth new motions before based on what the judge said in open court that there has been "serious deprivation of defendant rights in this case".
5.
If the govt is willing to agree to say a 12-18 mth sentence, is it better to take that?
6.
Or is it better to ask the defendent to take his chance that the judge will give him something lower based on the judge's feelings expressed in open court.
Stewart
Law student
Posted by: Christopher Stewart | Jan 12, 2005 12:45:01 PM
I agree with "A prosecutor." Courageous district court judges who want to move off the guidelines (is there such a thing as a departure now?) will load the record with reasons that will be reviewed by the court of appeals. Will they be deferential despite the "reasonableness" language? I think that will depend on the circuit. I'll bet there will be evolving caselaw on different levels of deference based on whether the "departure" is favored or disfavored.
Defendants challenging a sentence within a range will have a tough time arguing that it was "unreasonable," since the courts of appeals will likely defer to the Sentencing Commission's "study" of these issues.
So, I believe this will be a one-way ratchet that may help defendants get and defend lower sentences from judges who disfavor the guidelines and hurt defendants who appeal sentences from judges who favor them.
What a mess but still better than where we were on Tuesday of this week.
Posted by: Alex E. | Jan 12, 2005 12:48:11 PM
on further reflection, the very fact that the Court granted a remedy to Booker -- i.e., remanded for resentencing -- without applying any harmless-error analysis (or directing the Seventh Circuit to do so on remand) means that the error is structural . . . .
Posted by: Steve Sanders | Jan 12, 2005 12:56:35 PM
Christopher:
See my responses to your other post of this question. http://www.typepad.com/t/trackback/1662930
Posted by: Alex E. | Jan 12, 2005 1:10:05 PM
Sorry, http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/rule_by_judges.html#comments
Posted by: Alex E. | Jan 12, 2005 1:11:22 PM
But if Blakely error is structural error, how could plain error review apply? And wouldn't a structural error also probably be retroactive?
Posted by: Bob (appellate attorney) | Jan 12, 2005 1:12:59 PM
So let me sure I understand this catastrophe.
1) The guidelines are advisory and the sentencing courts can now do whatever they want within the stated statutory maxim, not the "relevant statutory maximum."
2) A presentence report would still be prepared by a probation officer and it will simply state, "If the guidelines were in place they would dictate a sentencing range of XX-XX months, but the guidelines are advisory only and you can sentence the defendant from probation to 10 years."
3) The government no longer has any burden of proof at sentencing on the "sentencing enhancments" because the guidelines are only advisory. Essentially everything comes in at sentencing and the Judge just gets to sentence the defendant to whatever he/she wants to.
4) For all of my clients that are on direct appeal pursuant to Blakely/Booker/Fanfan, the Court of Appeals now will simply determine whether the sentence was unreasonable in light of the statutory maximum.
Well this has simplified my practice. If the government comes at me with your standard felon in possession case and they do not give me a Rule 11(c)(1)(C) agreement as to a sentence then I might as well go to trial. My sentence could be higher or it could be lower, but I cannot give my client any reasonable guarantee about what the sentence should be.
My appeals will now only be for trial errors because the unreasonableness standard is so vague and the Fifth Circuit is so generous with unreasonableness...
Posted by: AFPD | Jan 12, 2005 1:14:16 PM
Bob,
If Booker is getting re-sentenced, then every one of your clients who preserved the Blakely error will have to be resentenced. The court of appeals cannot review the sentence for reasonableness under the abuse of discretion standard unless the district court has applied the proprer standard (advisory guidelines) in the first instance, no?
Steve
Posted by: Steve Sanders | Jan 12, 2005 1:27:16 PM
Does this eliminate "relevant conduct" time for cases on appeal?
Posted by: Shelly | Jan 12, 2005 1:27:34 PM
I've got a good one for anyone that can help. I tried a drug case in F. Ct. last May. Blakely was issued. We wrangled several months over what to do. On Monday we started our sentencing trial. I'm in day three with a jury empaneled. We just took a break to digest this. The original jury convicted of conspiracy to distribute more than 500 grams of a substance containing meth. Now the govt. is presenting evidence regarding role in the offense, a weapon enhancement and a lot more dope. My inclination is to send this jury home and let the judge sentence. Please email your thoughts to me - right away! I've got two more hours before the judge hears arguments.
Dennis Charney
Attorney
Posted by: Dennis Charney | Jan 12, 2005 1:36:20 PM
I'm a defense attorney. I'm not sure I get it. If a fraud defendant is convicted but the loss amount is not submitted to the jury (as apparently it shouldn't be), what does it mean to say that the Guidelines are advisory if you first have to know the amount of the loss before you can take the Guidelines' "advice"? How can the judge decide that the loss is in a certain amount when the defendant is entitled to a jury trial on the issue?
Posted by: Fred Friedman | Jan 12, 2005 1:47:34 PM
I thought in order to "submit" those to a jury it has to be on a presentment of an indictment.
Posted by: Jessica T. | Jan 12, 2005 1:54:09 PM
What about if someone signed a Blakely waiver
before this recent decision? Would the waiver
trump this opinion and force the judge to
apply the unconsitutional aspects of the
guidelines (i.e. the amount of loss in a
fraud case)
Any ideas or help would be truly appreciated.
Posted by: Pat | Jan 12, 2005 1:54:27 PM
In response to Mr. Friedman, the defendant is only entitled to a jury trial on the loss amount, I think, if the guideline is mandatory. If it is advisory, as now held, the judge makes a guidelines determination under the old scheme, by the preponderance of the evidence, and then considers the guideline range in reaching his sentence (and presumably can't deviate too much from it without a good reason).
Posted by: A prosecutor | Jan 12, 2005 2:07:05 PM
I am ready to hire an attorney who is educated on all the Blakely/Booker updates. I understand we are unsure if this applies retroactively, but let's find out. Basically, the case involves a fire arm enhancement after the plea was signed. It was never admitted to being in connection with the crime, and in the PSI it was stated that it was not in relation to the drugs. Enhancing factors not plead guilty to are affected by this new rule, correct? I'm not a lawyer, I don't know much about law, I need a lawyer, because we are READY to try to make something happen and adjust this sentence so my husband can come home on immediate release. Anyone ready, willing, and able?
READY (Family member searching for guidance)
Posted by: READY | Jan 12, 2005 2:15:45 PM
If "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," how can a judge then still determine a loss/drug amount that was not found by a jury, and enhance a sentence, notwithstanding that the FSG are advisory? Advisory or not, the Defendant's Sixth Amendment must still be vindicated. Would appreciate your thoughts.
Posted by: A defense attorney | Jan 12, 2005 2:23:22 PM
Because they guidelines are advisory only this enhancement does not implicate your clients 6th Amendment rights.
Posted by: steve | Jan 12, 2005 2:25:21 PM
Fred:
If you think the jury is going to go your way but the judge would not (because of the different standards of proof, for example), then I'd argue you must stay with the jury using an analogue to double jeopardy in a bench trial (i.e., the jury has already begun to hear evidence). If it's the other way around, I'd hate to have to argue the judge wouldn't have to be bound by a jury finding, beyond a reasonable doubt. Even so, you could still argue the equivalent of "departures" whether the judge or jury decides the weight issue.
Maybe the jury wasn't required after all, but that's the assumption the parties acted upon, so you could argue that it's the same as if the government included elements in an indictment that needn't be there. I've never found case law supporting or rejecting that argument but as a matter of logic, you could say if it's in a Blakely-ized indictment (or some pleading), then the government is stuck with what it asked for.
Bottom line, I wouldn't be so quick to dispense with the jury process if you're not sure you get a benefit you'd lose if you proceeded with it. At the very least, I wouldn't drop the jury with only a few hours to think about this. Can you get a few days?
Good luck.
Posted by: Alex E. | Jan 12, 2005 2:28:32 PM
To Ready: There is noway that a firearm enhancement could of been applied to your husband's case if the PSI stated that the firearm was not in connection with the crime. The PSI would of made the determination one way or another. I think that you may not be aware of all the sentencing facts. Furthermore, despite what all Federal defendants have been lead to believe (by defense attorney's or jailhouse attorney's) any ruling on Blakely does not make them less guilty or anymore guilty for that matter.
Posted by: David | Jan 12, 2005 2:32:30 PM
David:
Couldn't the judge have rejected the PSR's (favorable to the defendant) finding and agreed with the government after a hearing or argument, assuming the government objected to this finding? You might be right that the family member doesn't know all the facts but it's worth some more investigating to see what actually occurred.
Posted by: Alex E. | Jan 12, 2005 2:38:25 PM
Does the trial judge still have to rule on the objections to the PSI? I have a case ready for sentencing, actually more than ready, whene we have made numerous objections to the facts in the PSI. Does the judge still have to rule on these point by point. The Sixth Circuit has held that the District Court must rule on each objection.
Posted by: Gary Crim, defense attorney | Jan 12, 2005 2:42:44 PM
