March 12, 2005
Sentenced for three uncharged murders
In his opinion for the majority in Blakely, Justice Scalia assailed the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."
Though this expressed concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I discussed in this post last year the case of US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), in which a defendant in federal court was sentenced for a uncharged murder. And today I came across this news report of a federal sentencing in which the defendant pled guilty to drug and firearm charges, but received a life sentence after the judge at sentencing found that there was clear and convincing evidence that the defendant was involved in three related killings.
Of course, had the remedy proposed by Justices Scalia and Stevens carried the day in Booker, the imposition of a longer term based on uncharged conduct would no longer be permitted in the federal system. But, because Justice Breyer's remedy prevailed in Booker, increasing a sentence based on such uncharged conduct is still permissible (though, now under advisory guidelines, no longer required).
March 11, 2005
Ninth Circuit's Ameline goes en banc!
As Howard Bashman reports here, the Ninth Circuit today granted rehearing en banc in Ameline, the case in which the circuit had established a broad plain error standard for Booker cases (detailed here). The Ninth Circuit's order, which serves to vacate the panel's ruling, is available here, and all the paper related to the case can be accessed here.
With this development, combined with the Fourth Circuit's intriguing rehearing decision in Hughes, leaves only the Third and Sixth Circuits applying the broad "presumption of prejudice" plain error standard (discussed more fully here).
On the road again
I am off to the airport yet again this afternoon, though this time the travel is for fantasy baseball and not work purposes. (Sleeper recommendations in the comments are always appreciated.) As is becoming a custom (as established here and here and here and here and here and here), I leave below some thematically organized and linked recent posts:
SHEPARD DECISION AND COMMENTARY
- Summarizing Shepard (and seeking state insights)
- Pondering some post-Shepard questions
- What is the scope of the prior conviction exception post-Shepard?
- Criminal history disputes and Shepard issues
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- The Indiana Supreme Court speaks on Blakely!
- More reasons Smylie made me smile
- Smylie does not make everyone smile
- In epic showdown, Blakely trumps Harris in Minnesota
- If you’re gonna do it, do it right — right?
BOOKER CIRCUIT COURT DEVELOPMENTS
- Three-ring circus ... err, three-way circuit split
- The plain error madness continues in the 4th Circuit
- Tenth Circuit addresses Blakely retroactivity
- DC Circuit joins the Booker world
- Lots more Booker action in the Sixth Circuit
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Latest compilation of post-Booker decisions
- Booker meets Roper and the rehabilitation of rehabilitation
- When will we see more post-Booker data?
- Ask and ye shall receive ... Booker data
- Handling Blakely/Booker habeas headaches
- Booker events not to be missed
Smylie does not make everyone smile
As I noted in this post, there is a lot to say about the Blakely work by Indiana Supreme Court in its noteworthy Smylie decision from earlier this week (basics here). Helpfully, Michael Ausbrook at INCourts has this terrific post on the Smylie decision, which covers a lot of important jurisprudential issues and is none too kind to the work of the Indiana Supreme Court.
For folks interested in Blakely state issues, Michael's post criticizing Smylie is a must-read, although I think his negativity about Smylie may reflect his (unreasonably?) high expectations for the work of a state court trying to sort through jurisprudential mess that lies in Blakely's and Booker's wake. (Among Michael's many astute comments is to attribute Smylie to part of "the damage the remedial opinion in Booker has done.")
Booker events not to be missed
As detailed last month in this post, there are no shortage of exciting events to enhance your Booker knowledge. But, as you update your Booker calenders, I want to spotlight two particular coming attractions.
First, next Tuesday, March 15, ALI-ABA has arranged for this webcast/video-conference on "Federal Sentencing Guidelines after Booker and Fanfan." I am very pleased to be participating in this event, along with not only Professors Nancy King and Stephen Saltzburg, but also key "insiders" such as US District Judge Paul Friedman, who is a member of the Advisory Committee on the Federal Rules of Civil Procedure, Michael O'Neill, former USSC Commissioner and now Chief Counsel to the Senate Judiciary Committee, and Deborah Rhodes, who serves as Justice Department's ex-officio member on the USSC. I have already learned a lot from this group just by participating in the event's planning, and the technology facilitates participation no matter where one is located.
Second, in San Francisco on May 25-28, 2005, the mother of all Booker gatherings will take place as part of the 14th Annual National Seminar on the Federal Sentencing Guidelines, which is a joint project of the Federal Bar Association and the US Sentencing Commission. As detailed in the brochure which can be downloaded below, nearly every big name in the Booker world will be participating in this program. I am heartbroken I have to miss this Booker event not to be missed because of a prior commitment (and my family might break me in other ways if I tried to change plans).
Daily dose of Booker in the Sixth Circuit
Continuing to clear its docket, the Sixth Circuit keeps up the pace with Booker rulings through two (unpublished) decisions released today: US v. Story, No. 03-6260 (6th Cir. Mar. 9, 2005) (available here) and US v. Ryan, No. 04-5401 (6th Cir. Mar. 10, 2005) (available here). Both cases involve plain-error remands. Neither seems to break new ground, but they reinforce the reality, noted here yesterday, that the treatment of plain error issues has settled down in the Sixth Circuit (in contrast to the madness which, as detailed here, now rages in the in the Fourth Circuit).
UPDATE: Appellate Law & Practice has some additional coverage here.
In epic showdown, Blakely trumps Harris in Minnesota
Though not quite having the cinematic quality of, say, Godzilla versus Megalon, in the recent Minnesota case of State v. Barker, No. A04-1453 (Minn. App. Mar. 8, 2005) (available here), the state Court of Appeals held that, despite the fact that Harris v. US allows for judicial fact-finding in support of mandatory minimums, where the mandatory minimum sentence is greater than the presumptive guideline sentence, imposition of the higher "mandatory minimum sentence" sentence violates Blakely when based on facts not found by a jury. In other words, Blakely trumps Harris when they are in tension:
Because the statute creates a mandatory-minimum sentence that replaces the ordinary presumptive sentence, Blakely v. Washington, 124 S. Ct. 2531 (2004) requires that the finding be made by a jury if the mandatory-minimum sentence exceeds the ordinary guidelines presumptive sentence.... [In this case] the mandatory-minimum statute functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence. Because it functions in the same way, we conclude, it should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely.
March 10, 2005
Criminal history disputes and Shepard issues
I believe the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here), and the possible demise of the Almendarez-Torres prior conviction exception, could prove so consequential not only because many states have sentence enhancers based on criminal history, but also because the facts surrounding a defendant's criminal are uncertain and subject to dispute more often than we might suppose.
The letter brief from the NJ Blakely litigation posted here provides some flavor of these issues, but another great example comes from a brief sent to me by North Carolina attorney Bruce Cunningham. This brief, which I have been authorized to post and is available for downloading below, spotlights in various ways a range of the disputable issues that surround criminal history which may now bw subject to Shepard challenges.
March 10, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Lots more Booker action in the Sixth Circuit
I joked in my earlier review of yesterday's circuit court work that the Sixth Circuit was surprisingly Booker quiet yesterday. I see now from posts at Appellate Law & Practice that the Sixth Circuit is back at it today with a set of notable Booker rulings. For now I can only give the highlights, since I am busy with the great conference here at OSU on "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law" co-sponspored by my own Ohio State Journal of Criminal Law.
- In US v. Bradley, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court appears to uphold a pre-Blakely appeal waiver. I have previously pondered the fate and future of appeal waivers after Booker in this post.
- In Ballard v. US, No. 03-5117 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court appears to sustain a defendant's ineefective assistance claim based on counsel's failure to raise an Apprendi issue.
- In US v. Barnett, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court denies the government's rehearing petition in the Circuit's leading plain-error case (Barnett background is here.) Thus, while the plain error madness rages on the in the Fourth Circuit (details here), it would now appear to be settled in the Sixth.
More on Medellin issues
In this post I spotlighted dynamic developments surrounding the the Supreme Court's consideration in Medellin v. Dretke of the right of foreign nationals on death row to meet with a consular officer from their home country. Adding timely intrigue to these matters, a reader has alerted me that this morning the Oregon Supreme Court issued an opinion in State v. Sanchez-Llamas, No. S51289 (Ore. Mar. 10, 2005) (available here), which plows related ground.
In Sanchez-Llamas, the Oregon Supreme Court rejects the a claim to suppress evidence based on a violation of the "right to consular notification and communication, as guaranteed by Article 36 of the Vienna Convention on Consular Relations (VCCR)," by holding that "Article 36 of the VCCR does not create rights that individual foreign nationals may assert in a criminal proceeding." Here is the Court's interesting final footnote:
Our legal conclusion in this case is consonant with every other state and federal case of which we are aware that has addressed the issue. [citations omitted.] We also note that the Supreme Court of the United States on December 10, 2004, granted certiorari in Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004). That case, which is set for argument on March 28, 2005, involves certain of the issues that we decide today.
More reasons Smylie made me smile
There is a lot to say about yesterday's Blakely work by Indiana Supreme Court in its Smylie decision (basics here). Thanks to The Indiana Law Blog's coverage here, I can link to press stories about Smylie from the Indianapolis Star and the AP. In addition, Michael Ausbrook at INCourts has interesting posts covering Smylie here and here .
Though Smylie is of particular concern for Indiana lawyers, this comment spotlights that it could be a very significant precedent for other state courts working through a range of Blakely issues. Though I will need subsequent posts to discuss the intriguing jurisprudential aspects of Smylie, I wanted first to spotlight the two amusingly snarky comments in the Smylie court's discussion of the Supreme Court's work in Blakely:
1. Early on in describing Blakely, the Smylie court states: "While many who read Apprendi deduced that 'statutory maximum' meant 'statutory maximum,' the Blakely majority chose to define it as 'the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'"
2. After fully explaining Blakely, the Smylie court states: "Whether [Blakely] represents sound jurisprudence or policy is of no moment for us under the Supremacy Clause, and we cannot see any grounds for sustaining Indiana's sentencing scheme given the Blakely holding."
A morning shot of Booker circuit action
Even though yesterday was — gasp — a day without a Sixth Circuit Booker ruling, we did have the big, crazy Fourth Circuit plain-error news and also another group of Booker circuit decisions. As suggested in yesterday's review here of circuit cases from earlier this week, it is becoming ever more difficult to keep up with all the circuit Booker action. Here is a very quick review of yesterday's notable rulings:
The Third Circuit in US v. Benjamin, 2005 WL 546647 (3d Cir. Mar. 09, 2005), and US v. Pinkston, 2005 WL 546648 (3d Cir. Mar. 09, 2005), continued its practice of sending all Booker issues back to the district court. In Benjamin, though, the Third Circuit did affirm a restitution order that seems to rest on judicial fact-finding without any consideration of Blakely issues that might be implicated.
The Seventh Circuit, and particularly Judge Easterbrook, used the rejection of a habeas claim in Knox v. US, 2005 WL 545269 (7th Cir. Mar. 09, 2005), to discuss a number of the Supreme Court's recent sentencing precedents. Along the way, the Knox court makes the seemingly significant assertion, citing Supreme Court precedents, that "judicial resolution of a factual dispute that should have been presented to a jury is not a 'structural error' that requires automatic reversal."
The Eighth Circuit was able to affirmed two sentences: in US v. Sayre, 2005 WL 544819 (8th Cir. Mar. 09, 2005), the court ducked the plain-error/harmless-error debate by concluding that, whatever the review standard, "the result is the same for Sayre ... [because] while the district court followed a sentencing scheme that is no longer mandatory, doing so did not affect Sayre's ultimate sentence in this case"; In US v. Quinn, 2005 U.S. App. LEXIS 3903 (8th Cir. Mar. 09, 2005), the court affirmed a 10-year mandatory sentence based on a prior conviction (notably, without mentioning Shepard).
The meddling resulting from Medellin
As discussed here a few months ago, the Supreme Court's decision to take on the case of Medellin v. Dretke, which concerns the right of foreign nationals on death row in the US to meet with a consular officer from their home country, seemed like an important development in the intersection of international law and the death penalty. (See this old background piece by Tony Mauro.) And, as is being extremely well documented by SCOTUSblog, the ripple effect of just the Supreme Court's decision to take this case is remarkable.
Because I have enough trouble keeping tract of domestic law, I will just urge readers interested in this subject to jump to the great Medellin coverage to be found at the SCOTUSblog here and here and here and here. In addition, How Appealing has some of yesterday's coverage of developments here, and this New York Times article provides the latest news.
March 9, 2005
The Indiana Supreme Court speaks on Blakely!
In what appears to be the most comprehensive state supreme court decision to date (and the first major post-Booker state supreme court ruling), the Indiana Supreme Court today has ruled on Blakely's applicability to Indiana's sentencing structure in Smylie v. Indiana, No. 41 SO 1-0409-CR-408 (Ind. Mar. 9, 2005) (available here courtesy of The Indiana Law Blog, which already has highlights here).
Smylie appears to be, from a quick skim, a very thorough and thoughtful decision (and I was very pleased and flattered to see this blog getting a "shout out" in footnote 12 of the Court's opinion, although The Indiana Law Blog notes here that I am slightly mis-cited). The Indiana Supreme Court in Smylie has held Blakely applicable to Indiana's laws and has concluded that Blakely-ization (and not Booker-ization) is the appropriate remedy — i.e., the Court rejects the suggestion to make its statutory sentencing structure advisory and instead calls for jury determinations of sentence enhancing facts.
The Smylie decision also covers some retroactivity issues and is certainly today's must-read for Blakely addicts. I am already looking forward to Marci Oddi's commentary at The Indiana Law Blog and also Michale Ausbrook's at INCourts.
The plain error madness continues in the 4th Circuit
As detailed in this brief order, the panel of the Fourth Circuit that issued its broad plain error ruling in Hughes (background here) has granted the government's petition to rehear the case. That would suggest, I think, that the Fourth Circuit's placement in the remarkable three-way circuit split on plain error (detailed here) is now back in play. Here is the full text of the (unusual?) order:
Panel rehearing of this case is granted at the direction of the Court. Entered for a panel composed of Chief Judge Wilkins, Judge Traxler, and Judge Gregory.
Ironically, when I first went to the Fourth Circuit's website to look for more information, I found an unpublished disposition in US v. Calloway, No. 03-4906 (4th Cir. Mar. 8, 2005) (available here), which vacates two defendants' sentences and remands "for proceedings consistent with Hughes." A quick Westlaw search indicated that perhaps more than 10 cases have been remanded on the basis of Hughes. I'm not sure what "panel rehearing" might mean for these cases or others in the Fourth Circuit pipeline, although I have been told that "the Fourth Circuit's rules (Internal Operating Procedure 40.2) state that if a panel rehearing is granted, the original judgment is vacated and the case will be reheard by the original panel."
In addition, and adding to what is becoming an almost comical story, now also appearing on the Fourth Circuit's website is US v. Gilchrist, No. 03-4379 (4th Cir. Mar. 8, 2005) (available here), where the Fourth Circuit responds to a defendant's petition for rehearing by stating "the panel is of the opinion that Gilchrist's sentences must be vacated and the case remanded for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005), which was decided after the panel opinion issued in this case." Then, in a 12-page concurrence(?!?), Judge Luttig explains in detailed terms why he believes "that our decision in United States v. Hughes was fundamentally flawed."
Anyone with additional information or insights about these notable Fourth Circuit developments (or about the still pending rehearing petition in the Ameline case from the Ninth Circuit) are encouraged to report in the comments or via e-mail what they know.
Ask and ye shall receive ... Booker data
In this post yesterday, I noted my eagerness for post-Booker data. Thanks to the kind folks at the US Sentencing Commission, I now have (and can share for downloading below) the USSC's "last complete data cut" which was prepared on February 28 and reflects all post-Booker cases received by the USSC as of February 17. (These materials are also now posted on the USSC's Booker/Fanfan page.)
These data reports cover 2,056 total cases, though in the USSC's analysis 70 cases had to be excluded due to incomplete or missing information. Thus, for the five weeks post-Booker, we have nearly 2000 cases to chew on (which is, of course, only one-third of what would have moved through the system if it were operating at a pre-Booker pace of 1,200 cases/week). The data is fascinating and the memos below are so clear (and brief) that I will let them speak for themselves. Importantly, USSC folks indicated that the "next data cut" will be likely taken around the end of this month.
Booker meets Roper and the rehabilitation of rehabilitation
The fascinating Booker work being done in the district courts merits as much attention as the Supreme Court's work in Shepard (basics summarized here, commentary here and here) and the steady stream of circuit dispositions (discussed and linked here). I see on-line this morning two remarkable district court rulings, each of which provides intriguing justifications for refusing to follow the federal guidelines' severe career offender enhancements.
In US v. Naylor, 2005 WL 525409 (W.D. Va. Mar. 07, 2005) (also available here), Chief US District Judge James Jones discusses and quotes from the Supreme Court's recent Roper decision to discount the defendant's prior convictions for robberies committed as a juvenile. In a thoughtful ruling (which echoes points I made here about Roper's possible impact on non-capital sentencing), Judge Jones carefully explains in Naylor why only legal technicalities suggest the application of the career offender enhancements and thus "a reasonable sentence for Naylor is 120 months imprisonment, within the sentencing range had he not been determined to be a career offender."
In US v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb. 22, 2005), Judge Alvin K. Hellerstein explains, when imposing a 14-year sentence, his rationale for "departures from the strictures of Career Offender punishments that I considered not entirely applicable to Carvajal's offenses and criminal history." Judge Hellerstein carefully explains that career offender enhancements would raise the defendant's sentence from a range of 63 to 78 months to a range of 262 to 327 months. He then decides that neither range is appropriate in light of 3553(a) and Booker's instructions:
In my opinion, a 168 month (14-year) term of custodial punishment of 168 month would be just punishment. Joseph Carvajal is 34 years old, and will be 48 years old when he emerges from prison (or 15% less if he wins reductions for good behavior).
Rehabilitation is also a goal of punishment. 18 U.S.C. § 3553(a)(2)(D). That goal cannot be served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary condition of mankind, for we are all created in the image of God. A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more severe than that necessary to satisfy the goals of punishment.
DC Circuit joins the Booker world
Issuing its very first Booker opinion, the DC Circuit yesterday in US v. Coumaris, No. 03-3024 (D.C. Cir. Mar. 08, 2005) (available here), did not have to struggle much because the government itself "moved to vacate Coumaris' sentence and to remand for resentencing." In Coumaris, the government conceded that the defendant had preserved the Sixth Amendment issue through objections to his PSR. The DC Circuit then explains:
This means that the Booker challenge here is governed by the harmless error standard appropriate for constitutional error, which the Government states it cannot satisfy. That is, the government concedes that it cannot demonstrate "beyond a reasonable doubt that the error complained of did not contribute to the [sentence] obtained."
The government's harmless error concession seems notable, since the defendant's 48-month sentence presumably was not at the bottom of a guideline range.
Interestingly, the Coumaris court expressly rejects the defendant's request to "resolve his specific challenges to the district court's application of the Guidelines before remanding." The DC Circuit asserts, that because "the district court might impose a different sentence on remand, and because the parties might choose not to appeal that sentence," addressing now "objections to the court's original guidelines calculations would be premature at best and unnecessary at worst." However, as I discussed here in connection with the Sixth Circuit's ruling in Hamm, this dodge may make life harder for the district court at resentencing: the sentencing judge is left uncertain about whether it has calculated the applicable guideline range properly, and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.
Tenth Circuit addresses Blakely retroactivity
Standing out among other circuit dispositions this week is the Tenth Circuit's discussion of Blakely's retroactivity in US v. Price, 2005 WL 535361 (10th Cir. Mar 08, 2005). The petitioner in Price had failed on his habeas claim in the wake of Blakely, but he sought rehearing after Booker, and the Tenth Circuit denies the rehearing petition with an opinion that provides an extended explanation for why "Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."
The Tenth Circuit thus becomes, I believe, the third circuit to address directly Blakely/Booker retroactivity after Booker, joining the Seventh Circuit in McReynolds and the Sixth Circuit in Humphress. Unlike the plain-error splits for cases still on direct appeal, the circuits have been uniform to date in rejecting Blakely/Booker challenges in cases that have become final.
UPDATE: As Adam kindly notes in the comments to this post and as another fine reader has brought to my attention, I keep forgetting that the Eleventh Circuit in Varela has also ruled that that Blakely and Booker are not retroactively applicable to cases on collateral review. So, we have four circuits that have officially spoken on this issue — the 6th, 7th, 10th and 11th — and I suspect that it is only a matter of time before the other eight follow suit.
Circuits keeping Booker busy
With my sentencing focus having been Shepard-ized this week (Shepard basics are summarized here, commentary here and here), I have gotten a bit behind tracking Booker action in the circuits. But a quick check on-line reveals that the circuits have already rendered nearly a dozen Booker rulings this week.
The only especially noteworthy rulings result from the DC Circuit's first foray into the Booker world (discussed here) and the Tenth Circuit's discussion of retroactivity (discussed here), which are cover in other posts. Here is a quick run-down of what's come this week from other circuits (in addition to the Sixth Circuit's ruling in Hamm discussed here):
The Third Circuit through US v. Kleinpaste, 2005 WL 524949 (3d Cir. Mar. 07, 2005), continues its trend of kicking all Booker issues back to the district courts, stating simply "the sentencing issues appellant raises are best determined by the district court in the first instance."
The Fourth Circuit maintains its fidelity to its Hughes approach to plain error by remanding for resentencing in US v. Johnson, 2005 WL 526889 (4th Cir. Mar. 08, 2005). However, in US v. Pierce, 2005 WL 523364 (4th Cir. Mar. 07, 2005), the court affirms a sentence because the defendant only challenged its computation and not its constitutionality, which prompts Judge Gregory in dissent to assert that the court should "sua sponte recognize the plain Booker error in this case."
The Eighth Circuit in two cases, US v. Edwards, 2005 WL 517019 (8th Cir. Mar. 07, 2005) and US v. Cotton, 2005 WL 525226 (8th Cir. Mar. 08, 2005), affirmed sentences involving the revocation of supervised release, and stated in Edwards that Booker's "effect on sentences imposed for supervised release violations is far less dramatic" than its impact on standard guideline sentencing.
The Ninth Circuit in US v. Luna, 2005 WL 518721 (9th Cir. Mar. 07, 2005), determined that the district court properly calculated the defendant's guideline sentence, but still remanded "for discretionary reconsideration of the sentence in light of Booker and Ameline."