February 1, 2005
Judge Bataillon provides another great take on Booker
In this post right after Judge Cassell issued his remarkable Wilson opinion (basics here, commentary here and here), I suggested that many judges would contribute in different ways to our view and understanding of the post-Booker world. Of course, as summarized here, that has proven true in many ways already. And now I can post another path-breaking effort from US District Judge Joseph Bataillon in US v. Huerta-Rodriguez, No. 8:04CR365 (D. Neb. Feb. 1, 2005).
As detailed in posts here and here, Judge Bataillon issued a number of important opinions in the post-Blakely era, and thus I am not surprised he has now answered the post-Booker call. And I am especially excited to see that in Huerta-Rodriguez, which can be downloaded below, Judge Bataillon has developed in remarkable ways some of the due process concepts I have discussed here and here.
The Huerta-Rodriguez decision defies summary, and it is a must-read for everyone trying to think through the post-Booker world. Let me just whet everyone's appetite with a few choice passages:
Although the advisory Guidelines system does not arouse Sixth Amendment concerns to the extent that a mandatory Guidelines system does, ... this is not to say that there are no longer any constitutional constraints on sentencing under Booker, even as applied to the now-advisory Guidelines system. The Due Process Clause is implicated whenever a judge determines a fact by a standard lower than "beyond a reasonable doubt" if that factual finding would increase the punishment above the lawful sentence that could have been imposed absent that fact. [Booker, 125 S. Ct.] at 754-55; Apprendi, 530 U.S. at 494. Booker does not alter these due process constraints on sentencing....
In order to comply with due process in determining a reasonable sentence, this court will require that a defendant is afforded procedural protections under the Fifth and Sixth Amendments in connection with any facts on which the government seeks to rely to increase a defendant's sentence....
There is no authority to support the contention that a defendant can consent to a change in the burden of proof for a criminal prosecution. This is so because the burden of proof is not the defendant's to waive....
The court is cognizant that the limits of due process are defined with reference to the line that separates an element of a crime from a sentencing factor.... That line remains blurred after Booker. In view of the uncertainty surrounding this issue, the court will err on the side of caution in protecting a criminal defendant's constitutional rights. Just as a court should construe a statute to avoid a constitutional infirmity if possible, ... prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional.
In addition to this fascinating work on due process, Judge Battalion's opinion in Huerta-Rodriguez also has a lot to say about the post-Booker concept of reasonableness. And the decision earns extra points for being, I believe, the first post-Booker opinion to cite the US Sentencing Commission's 15-year report. Happy reading.
February 1, 2005 at 05:20 PM | Permalink
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Can this be true? Is it even possible to hope that "beyond reasonable doubt" will be the standard for resentencing as the law of the land? This such awesome news for those wrongly sentenced recently under the other standard. Any one have an opinion, or am I pie in the sky dreaming?
Posted by: grant p. | Feb 2, 2005 2:11:15 AM
Judge Batallion's opinion is a great breath of fresh air. He cites dozens of cases, makes a cogent argument for continuing a Blakely-like charging and sentencing procedure, clearly analyzes what can only be thought of as a strong, middle-of-the-road sentencing formula, and gives clear direction to those before him. This, rather than the more extreme models (treating the Guidelines as binding, nearly binding, or not really important at all) should be the model that federal judges follow.
Posted by: District Clerk Battling Booker | Feb 2, 2005 9:29:06 AM
I believe this to be a seriously flawed analysis of the Guidelines under the Booker regime. First, Judge Bataillon's opinion is predicated on a serious logical fallacy. He writes the following:
[The] wholesale application of the
Guidelines as per se reasonable effectively
converts the now-advisory guidelines to
mandatory guidelines triggering
unconstitutionality in the same way the
Washington guidelines did in Blakely.
It does not follow that if sentences within the Guideline ranges are per se reasonable, then those outside the range are per se unreasonable. One does not necessarily entail the other.
This reflects, I believe, a deeper misunderstanding of Booker. In Blakely and Booker, the Sixth Amendment violation (i.e., judicial fact finding) is predicated on the mandatory nature of the sentencing guidelines; the remedy devised by Justice Breyer is really intended to dull that Sixth Amendment attack not by addressing judicial fact finding, but by addressing the mandatory nature of the sentencing guidelines. It defies logic to say that findings of fact guided by the advice of the Guidelines must be done beyond a reasonable doubt, but under the stricter mandatory scheme, the preponderance of the evidence standard prevails. In other words, if the Guidelines are really only intended to provide guidance in an otherwise indeterminate sentencing regime, it makes absolutely no sense to require proof beyond a reasonable doubt.
Posted by: I.O. Consent | Feb 2, 2005 10:41:52 AM
That's not what Judge Bataillon is saying, I.O. He's saying that, notwithstanding the remedy found by the Supreme Court for the Sixth Amendment right to jury trial problem, he's adopting procedures to guarantee defendants other sixth amendment and fifth amendment DUE PROCESS rights, particularly those of finding facts BRD. He acknowledges that Booker itself does not REQUIRE such a procedure, but looks instead to the tone of Apprendi, Blakely, and Booker to note that the Court has increasingly found that sentencing enhancements themselves are much more like elements of crimes than merely "sentencing factors." Thus, as elements, those factual predicates should be found BRD.
As to the "logical fallacy" you point out. Judge Bataillon is noting that judges, like Judge Cassell, who view the guidelines as all-but-mandatory (or judge Holmes who views the guidelines as MANDATORY) are not following the Booker remedial majority's commands to consider all the 3553 sentencing factors. Judge Cassell basically believes that the Sentencing Commission has done so in arriving at its Guidelines; I think Judge Batallion believes that fencing oneself into that mentality returns the guidelines to "almost mandatory" status. Note that he writes "the WHOLESALE application of the guidelines as per se reasonable..." he's saying that judges who sentence via the Guidelines SOLELY because it's a sentence within the Guidelines (and not one that is appropriate under all the circumstances of the case) is vacating her role as a judge and is returning to a mandatory sentencing regime. He's not saying that sentences within the range are per se unreasonable; he's saying that it is per se unreasonable only to sentence within the range (or to give overwhelming weight to the guidelines sentence as compared to all the other factors). It's that recognition, I believe that is so important for all federal judges to understand.
Posted by: District Clerk Battling Blakely | Feb 2, 2005 2:19:07 PM
Posted by: | Oct 14, 2008 8:18:11 AM
judge batillion is not a good listener he gets quite confused and does not remenber - does not under stand does not give the party the right to speak or explain he is not a god, he is one sided
Posted by: ginger | Feb 20, 2013 9:19:22 PM