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February 14, 2005

Sorting through the Circuit circus

Though I can barely find time to read all the circuit court Booker rulings (recently detailed here and here and here and here and here), my growing sense is that the appellate handling of "pipeline case" is a disparate mess.  Of couse, given Justice Breyer's opaque closing paragraph in Booker, this comes as no big surprise (I expressed my fear of a remedy mess here hours after Booker came down).  But the situation seems to be developing into a (twelve-ring) circus that risks significantly undermining a federal sentencing system which is purportedly committed to administering equal justice.

To clarify my own thinking about the rapid-fire circuit dispositions, I have below outlined my own understanding of how Booker should be understood for pipeline cases now on appeal.  I would be eager for readers to use the comments to provide feedback on my analysis.

The two types of Booker errors: I believe each part of the Booker opinion defines a different type of error.  Justice Stevens' opinion explains that there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt.  Justice Breyer's opinion explains that, given the Court's finding of constitutional error, there was a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory with heightened attentiveness to the instructions of 3553(a). 

Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding.  But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory and was imposed without heightened attentiveness to the instructions of 3553(a).  Indeed, the cases before SCOTUS define these realities: Booker's sentence included judicial fact-finding so it involved both constitutional error and statutory error; Fanfan's sentence was not based on judicial fact-finding so it involved only statutory error.  Both cases were remanded for resentencing.

The Booker remedial instructions:  In his final paragraph, Justice Breyer explains that "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."  I think that means that both constitutional and statutory errors must be recognized and remedied in all federal cases not yet final.  However, Justice Breyer also suggests that reviewing courts will be able to "apply ordinary prudential doctrines" to ensure that not "every appeal will lead to a new sentencing hearing."  And here is how Justice Breyer explains the application of these prudential doctrines:

[Reviewing courts can determine] whether the issue was raised below and whether it fails the "plain-error" test.  [And] 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.

What I think Booker means for pipeline cases: Putting all these pieces together, I believe circuit courts, in cases with constitutional error, can and should apply plain error analysis if the Sixth Amendment was not raised below.  However, even if the plain error standard is not satisfied OR if a sentence did not involve "a Sixth Amendment violation," circuit courts still must, because of statutory error, apply harmless error analysis to determine if resentencing is still warranted AND also must review every sentence for reasonableness even if application of "ordinary prudential doctrines" makes resentencing unnecessary.

February 14, 2005 at 10:25 AM | Permalink


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So where would it leave those already brought back for re-sentencing on plain error and the sentence increased? Increased because judge cites articles in local paper about public mistrust, something he didn't mention after the first sentencing. White collar "can do" attitude? SOMEONE HELP. Lawyer already motioned to court for wiping out increased part of the sentence. Court denied cited untimely and no merit. Lawyer cited everything you guys talk about in this blog, including due process and ex post facto, among other things. Please reply.

Posted by: pax | Feb 14, 2005 11:06:20 AM

For weeks now, I have been arguing in multiple briefings to the Ninth Circuit that two errors exist (no response yet), but as to the
non-Blakely error, it is my position that it is a 5th amendment due process violation rather than statutory, at least when it happens to the
defendant, as opposed to the government as
in FanFan's case. Therefore, a Chapman harmless
error test should apply, or in other words, the
government has to show he would have gotten the
same sentence had the judge had discetion.

Posted by: Greg Silvey | Feb 14, 2005 11:15:46 AM

Dr. Berman, I agree with you on the need to remand all federally convicted inmates serving time now in Federal prisons for resentencing. Due to the huge amount of resentencings that would require, I doubt we will see that happen. My thoughts focus on those convicted, who have already served their time. There have been hundreds of thousands of people who have served sentences, with major Blakely/Booker factors. These people were sentenced based on a system now deemed unconstitutional, in addition to their 3553(a) rights never considered in the sentencing process. I for one feel that their may be civil liability on the governments part, for each of these people. What I am trying to say is that why shouldn't someone who has already completed their sentence, who was sentenced with enhancements from judicial fact-finding, not be allowed to sue the government civilly now that the sentencing sceme under which they were sentenced has been deemed unconstitutional. I am not a plaintiff attorney, but I feel that the government may definitely have liability under this issue. Any thoughts from the attorneys reading this?

Posted by: Bruce | Feb 14, 2005 11:27:41 AM

I agree with you up to the very end, where your argument leaves me in some doubt. If I understand you correctly, the main point is that every pre-Booker sentencing in which mandatory guidelines were applied is a sentencing with statutory error, and many such sentencings also feature a constitutional error. Given that all such cases present error, only the harmless error doctrine (or in cases of no contemporaneous objection, the plain error doctrine) can save any pending pre-Booker sentence from reversal. But as to constitutional errors, I disagree with your view that ordinary harmless error review could apply. Justice Breyer's opinion clearly suggests the opposite, when he makes reference to the harmless error doctrine only in relation to non-constitutional Booker errors. As to constitutional errors, the only possible type of harmless error analysis would be that applied by the Supreme Court in Neder, a very limited category, not the vague reasonableness inquiry. And even as to statutory Booker errors, sentences cannot simply be reviewed for reasonableness: Breyer notes that "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." This is not saying that if a mandatorily-imposed sentence is reasonable, the court should find the error harmless. Instead, it is suggesting that in some theoretical subset of of such cases, review for reasonableness may be all that is required to find harmlessness. That subset would have to be one in which the sentence imposed clearly would have been no less if the judge had exercised discretion. Such a small subset might include cases where the sentencing judge announced on the record that but for the limits of the top of the guideline range, the judge would have imposed a higher sentence. Apart from that very narrow category of cases, the statutory violation will ordinarily be non-harmless, as every circuit has held where a sentencing court erroneously proceeded on the assumption that it was bound to impose a mandatory minimum sentence.

Posted by: Richard K. | Feb 14, 2005 11:38:41 AM

Ditto Greg Silvey's comment. Booker error type 2 is not mere statutory error; it's constitutional error too. Just not of the 6th Amendment variety. It's of the due process variety instead.
The due process clause provides: "No person shall . . . be deprived of . . . liberty . . . without due process of law." The question then becomes: what process is due the federal criminal defendant at sentencing? The answer: the process that Booker SAYS is due -- that is, consideration of ALL 3553(a) factors, wide discretion to impose a sentence within statutory minimums and maximums (without having to come up with a "departure" justification), etc. Did my pre-Booker clients get that process? No. Therefore, their due process rights were violated -- with or without an accompanying 6th Amendment violation.

Posted by: Jill | Feb 14, 2005 12:33:10 PM

Prof. Berman, two points:

First, one ambiguity in your analysis that I think is of potentially great importance as to the number of pipeline cases that will eventually be remanded is whether or not the appellant was required to make a "lack of discretion"-type objection at sentencing in order to preserve the error for the "harmless error" review that Breyer mentions in the quoted passage. If so, than the lack of an objection below means that CAs would NOT apply "harmless" error analysis, but rather, as you well know, apply the prudential "plain error" standard -- which of course includes two important additional barriers to remand: the fourth Olano prong that sunk the appellant in US v. Cotton, plus a shifting burden of proof. I can't say I've read tons of pipeline briefs, but the ones I have read and worked with tend overwhelmingly to ignore the "TJ erred in not realizing he had discretion" argument -- with good reason, since it wasn't totally obvious that the Supremes would invalidate the Guidelines even as to non-6th-Amendment violations. So as to your statutory category of violations, I wonder how many will actually get the benefit of "harmless" vs. "plain" error review.

Second, is it really so clear that the issue of "reasonableness" didn't have to be either (a) raised below, or (perhaps more importantly) (b) raised on _appeal_, either in the briefs or post-brief/argument in a supplemental brief or 28(j) letter? In other words, why should CAs be obligated to decide whether a sentence is reasonable if the appellant never claimed the sentence was unreasonable? Maybe I am missing an obvious point on this, but why can't a "reasonableness" challenge be waived by virtue of failure to raise?

Posted by: Jason | Feb 14, 2005 2:01:07 PM

The per se reversal in Booker due to constitutional error suggests that an Apprendi-type error is structural, and is NOT subject to Chapman-style constitutional harmless error analysis. Thus, it appears that neither Neder nor Cotton applies to Booker errors.

Posted by: Steve Sanders | Feb 14, 2005 3:26:21 PM

To follow up on my earlier post, I have first been arguing that harmless error review for the Booker 5th amendment error is only indicated and not mandated and that the error is really structual and defies harmless error review, because in most cases, the only evidence is what a judge without discretion did, which is little help in determing what a judge with discretion would have done.

Posted by: Greg Silvey | Feb 14, 2005 6:31:53 PM

As to the waiver of the reasonableness argument, the 8th circuit in Killgo held that it wasn't waived in the waiver of appeal even though the 6th amendment issue was waived. I think the simple answer is that reasonableness as a general sentencing challenge did not exist before Booker so could not have been preserved.

Posted by: Greg Silvey | Feb 14, 2005 6:57:39 PM

Two responses:

First, let's assume for the sake of argument that Booker errors of the "statutory" kind are not structural (it is certainly not clear to me that they are). In that case, it still seems to me that most "pipeline" cases will have failed to have properly preserved a "lack of discretion" (statutory) objection to their sentencing, and that CAs will in most cases properly review such errors for plain error, not for harmless error, because those objections will have been forfeited.

Second, despite the 8th Circuit's Killgo opinion (which, as Professor Berman noted, is rather strange), doesn't it logically seem necessary for _someone_ to have argued, at some time or another, that a given sentence is "unreasonable" before a CA is required to address the issue? Killgo seems to suggest that the fact that a defendant made _any_ kind of pre-Booker objection to the TJ's application or interpretation of a single, particular guideline to have raised in implicit "unreasonableness" argument. I can't agree with that. Why should an objection to a particular application of a single guideline be transformed into an objection that an entire _sentence_ is unreasonable? It seems to me that if a CA really is required to review an entire sentence for unreasonableness, then it is not asking too much to require someone to first claim that it is in fact unreasonable. The fact that this argument was not clearly available prior to Booker should not excuse parties from at least attempting to raise the issue before their decisions on appeal are filed. And of course, they can always raise the argument on petition for rehearing if the mandate hasn't issued.

Posted by: Jason | Feb 15, 2005 2:45:12 PM

In response to Jason, I don't have a problem with the unreasonableness issue having to be raised on appeal (and I am raising the type 2 error in every case even where the Blakely error appears dispositive), I only have a problem with it having to had been raised below, because I believe it was an entirely unexpected (and unrequested) establishment of a new right. I am also reading alot into Booker's comments about plain error for the 6th amendment Blakely error, they are not repeated for the non-6th amendment error, but instead, the suggested choices are harmless error or the unreasonableness review.

Posted by: Greg Silvey | Feb 16, 2005 12:28:53 PM

I am a CJA panel attorney in Texas. I also handle
civil appeals as well. I am briefing a case to
Fifth Circuit on appeal waivers in light of Booker.I also have raised the issue of whether the Feeney Amendment violates separation of powers doctrine. In my opinion, you cannot waive a reasonableness review in a plea agreement when such right was unknown. That may explain the Kliggo decision. A separation of powers contention cannot be waived at all; it is "right" of the system and not a personal right. All that is required is standing.I will be glad to communicate with anybody. My e-mail:bwcobb11554@yahoo.com

Posted by: Bruce W. Cobb | Mar 2, 2005 12:14:32 PM

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