February 24, 2005
Important Booker rulings from district courts
With all the non-stop Booker action in the circuits, it is easy to overlook the important Booker work still being done by the federal district courts. I've not been able to track of dozens of district court habeas rulings, but I can quickly report on a few notable recent district court rulings on other issues (and previous coverage is here).
For example, Judge Cassell has covered more important post-Booker ground by thoughtfully explaining in US v. Duran, 2005 WL 395439 (D. Utah Feb. 17, 2005), why the guidelines must still be considered advisory in cases involving application of the "safety valve." Also quite thougthful is the work done by Judge Ellis in US v. Biheiri, 2005 WL 350585 (E.D. Va. Feb. 09, 2005), which has notable dicta on a range of post-Booker issues.
But the most notable and potentially consequential district court decision of late would seem to be US v. Greer, 2005 WL 396368 (M.D. Ga. Feb. 17, 2005), which speaks to the scope of the Almedarez-Torres prior conviction exception (here is a lot more background on this issue). In Greer, the court holds in a 924 case that a prior violent felony was not proved to a jury and could not be used to enhance a sentence. The Greer court reaches this conclusion because "[d]etermining the factual nature of a prior conviction is materially different from simply finding the existence of a prior conviction for recidivism purposes [and the] Court finds that the Sixth Amendment to the Constitution, as interpreted in Booker and Blakely, reserves this type of factfinding for jury determination."
February 24, 2005 at 09:46 AM | Permalink
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I guess I would respectfully disagree with Judge Cassell's conclusion with regard to the safety valve provision. I would argue that judicial fact-finding with respect to the safety-valve provision is not a Sixth Amendment violation in that the fact-finding benefits the Defendant because the resulting Guideline sentence not only is below the statutory maximum, it's below the statutory minimum. I think for purposes of the safety valve the point to look at the fact-finding for Booker purposes is not the application of the Guidelines, but rather when the judge determines that the defendant meets all of the criteria under § 3553(f). That fact-finding benefits the defendant. Therefore, it would seem that subsequent fact-finding to determine the Guideline sentencing range is harmless. In other words, the fact-finding always results in a decrease in punishment, not an increase in punishment because, I'm pretty sure, the resulting Guideline range is always going to be lower that the mandatory minimum, otherwise there's no point in having a safety-valve. Presumably, the safety-valve provision was enacted so as not to result in the imposition of harsh sentences to first-time, non-violent offenders. With that in mind, it would seem anamalous then, if the Guidelines were only advisory under the safety-valve, for the sentencing judge to find that the defendant qualifies for the safety-valve but yet still be able to impose the mandatory minimum sentence.
Posted by: Pat Smith - law clerk | Feb 24, 2005 1:54:19 PM