March 19, 2005
Lots of Blakely and Booker stories in the papers
Though I a still catching my breath from another big sentencing week, my ugly bracket has me focused on work rather than basketball this morning. And I have found a number of interesting Blakely and Booker stories in the papers:
- This article from the Gary Post Tribune explains why the Indiana Supreme Court's Smylie decision (basics here, commentary here and here and here), which applied Blakely to Indiana's sentencing scheme, "has judges, prosecutors and defense lawyers scratching their heads."
- This article from the Billings Gazette provides background on Booker and details how the post-Booker world is playing out in Montana.
- There interesting coverage of former Connecticut Governor Rowland's sentence (basics here) to be found in stories from the New York Times and the Hartford Courant. And the blog Kirby's Reports has a lot more information and links on the Rowland story.
- The papers have a lot of basic coverage of the Second Circuit's remand of Martha Stewart's case for resentencing (see here and here), though the stories do not clearly explain whether Second Circuit ordered resentencing or just gave Judge Cedarbaum discretion to consider resentencing (and I cannot find the Second Circuit's order on line).
DC Circuit joins the plain error fun
Late yesterday, the DC Circuit released US vs. Smith, No. 03-3087 (DC Cir. Mar. 18, 2005) (available here), in which the circuit for the first time weighs in on the Booker plain error issue that has split the circuits (background here). Smith is a brief per curiam opinion with only limited discussion of the legal standard, but it seems that the DC Circuit is joining the 1st, 5th and 11th Circuits in requiring defendants to make a showing of prejudice from the application of mandatory guidelines. In Smith, the DC Circuit affirms the defendant's sentence, stating "Smith fails the plain error test because he cannot show that the constitutional error in this case had a prejudicial effect."
And yet, the defendant in Smith conceded that, because the district judge had upward departed in two prior sentencings, "giving the district judge wider latitude in this case could very well result in a longer sentence." Given the unique facts in Smith, I am not sure the case establishes exactly how the DC Circuit might approach the plain error issue in a case where there is a real possibility of prejudice to the defendant from the application of mandatory guidelines.
March 18, 2005
Another amazing sentencing week!
March continues to amaze me with one remarkable sentencing week after another. (Just some event of note from earlier this month are linked here and here.) In an effort to organize all the action, I link below just some of this week's highlights:
BOOKER DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- Judge Presnell speaks on 5K after Booker
- Judge Goodwin speaks on Booker!
- Booker and crack/powder cocaine sentencing
- Latest, greatest, post-Booker sentencing statistics
BOOKER CIRCUIT COURT DEVELOPMENTS
- Fifth Circuit speaks directly to post-Booker standard of review
- More Sixth Circuit plain error remands
- Eighth Circuit also speaks on harmless error review
- Hughes is back (and better than ever?) in the Fourth Circuit
- Eighth Circuit finds downward departure sentence unreasonable
- Booker remand in the First Circuit
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- An insightful snapshot of Smylie
- Report on the NJ Blakely arguments
- More big Ohio Blakely news
- Insights on Shepard and its impact in California
CELEBRITY SENTENCING DEVELOPMENTS
- Rowland gets a year and a day
- Celebrity federal defendant update
- Another celebrity sentencing update
- What sentence should Bernie Ebbers get under Booker?
- What sentence should former Gov Rowland get under Booker?
Rowland gets a year and a day
The AP report here that former Connecticut Governor John Rowland, who in December pleaded guilty to one count of conspiracy to steal honest service, received a sentence today of one year plus one day in prison. (The extra day, because it makes Rowland eligible for good-time credit, actually make the sentence more lenient than if it was just one year.) As discussed in this prior post, Rowland's guideline range was 15-21 months, and thus Judge Peter Dorsey must have granted either a downward departure or a Booker variance.
Thanks to the Hartford Courant, I now have found links the to sentencing memoranda filed in the case. The defense memo, available here, simply asked for a sentence below 15-21 months, and the prosecutors' memo, available here, requested a sentence of between 30-37 months. Though I suspect the Rowland was hoping to avoid any prison time, the final outcome suggests Rowland's sentence ought to be counted as a post-Booker win for the defense.
Continuing his fine coverage of major Connecticut law stories, the blog Kirby's Reports has a lot more information and links on the Rowland story.
Judge Presnell speaks on 5K after Booker
In addition to being a great day for the Irish, St. Patty's Day 2005 will also go down as an amazing day for the common law of sentencing. The March 17 sentencing work of Judge Sifton in Simon and Judge Goodwin in Gray covers an array of important post-Booker issues, with Simon especially effective on crack sentencing and the purposes of punishment, and Gray doing amazing work on sentencing issues concerning burdens of proof, Crawford and ex post facto doctrine. And now we should add to the Irish stew of notable March 17 opinions the work of Florida District Judge Gregory Presnell in US v. Belvett, No. 6:04-cr-199-Orl-31DAB (MD Fla Mar. 17, 2005).
Judge Presnell made his mark on the post-Blakely sentencing world in various ways, as detailed here and here and here, and now in Belvett he addresses departures for substantial assistance under 5K1.1. Though, as with Simon and Gray, the full Belvett opinion (which can be downloaded below) merits a close read, here is a choice snippet that flows from the prosecutor's objection to Judge Presnell granting a larger 5K1.1 departure than requested by the government:
This case presents the next logical step in the government's philosophically one-sided bid to marginalize the judicial branch. Despite the government's constant refrain that it seeks uniformity in sentencing, the government's actual policy reveals that refrain to be disingenuous. [FN 4]
[FN 4] One of the basic goals of the sentencing guidelines was to reduce sentencing disparity. However, with respect to substantial assistance departures, this goal has not been achieved. Indeed, the commentators and the U.S. Sentencing Commission itself have noted the substantial sentencing disparity among Districts in the application of Section 5K1.1. It would be naive to think that court discretion is the primary culprit driving the disparity, as the government controls the framing of Section 5K1.1 motions and often gets the departure it recommends.
Fifth Circuit speaks directly to post-Booker standard of review
I am back at the computer after a morning of SCOTUS mooting and Booker lecturing, and there is lots of news to report. Though I am still taking in the sentencing work of Judge Sifton in Simon and Judge Goodwin in Gray (on which I will say more later), the Fifth Circuit has my attention shifted briefly to appellate issues with its decision in US v. Villegas, No. 03-21220 (5th Cir. Mar. 17, 2005) (available here), in which the court re-examines "the proper standard of review to employ in our resolution of a claim that the district court improperly applied the Sentencing Guidelines in calculating the sentencing range under the previously mandatory, now advisory, sentencing guideline regime."
Here is what the Villegas court says about the standard of review:
We conclude that when a district court has imposed a sentence under the Guidelines, this court continues after Booker to review the district court's interpretation and application of the Guidelines de novo. We do not speak in this opinion, however, to the situation in which a district court elects to exercise its post-Booker discretion to impose a non-Guidelines sentence....
[N]othing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court's interpretation and application of the Guidelines de novo.
Notably, in Villegas the Fifth Circuit's de novo review leads to a conclusion that a gun enhancement under the guidelines was improperly applied. In turn, explains the court, because "the district courts misapplication of the Guidelines requires a remand in this case, we need not consider Villegas's argument that his Sixth Amendment rights were violated."
Judge Goodwin speaks on Booker!
Providing another must-read for Booker fans on a Friday morning (along with Judge Sifton's work in Simon discussed here), SDWV District Judge Joseph Goodwin gives us his take on the post-Booker world with US v. Gray, No. 3:03-00182 (SD W Va Mar. 17, 2005) (available here). Judge Goodwin did some terrific work post-Blakely (see here and here), and his post-Booker work in Gray does not disappoint. Here is the opinion's introduction:
First, I calculated the applicable Guideline range for each defendant by making appropriate findings of fact and resolving objections to the presentence report. Following this determination, I examined and applied the sentencing factors set forth in 18 U.S.C. § 3553(a). I then considered what the Guideline advice would have been if calculated using only the evidence proven beyond a reasonable doubt. Once I had investigated each applicable factor, I considered these factors, along with the Guideline range, as separate pieces of advice that together informed the exercise of my discretion as I determined an appropriate sentence for the defendants, Terrence Askew and Joshua Gray.
Below is a discussion of the factual findings determined at the sentencing hearing, a discussion of the applicable § 3553(a) factors, and a calculation of the defendants’ advisory Guideline range. In addition to factual objections to the presentence report, each defendant, by counsel, filed numerous legal arguments with the court in the form of sentencing memoranda. Specifically, the defendants raised important reasonable doubt, ex post facto, and Crawford v. Washington concerns both in their memoranda to the court and at the hearing in this matter. I deal with each of these concerns at length below.
Another celebrity sentencing update
Following up on the high-profile cases discussed here yesterday, this Washington Post article indicates that Martha Stewart's lawyers did ask the Second Circuit to remand her case for resentencing. Martha's case would certainly make for an interesting Booker resentencing if it were to come to pass. [UPDATE: The press is now reporting (see here and here) that the Second Circuit issued a Crosby remand for resentencing in Martha's case.]
In the meantime, we have former Connecticut Governor Rowland's scheduled sentencing today for Booker intrigue. The New York Times has coverage here, and NY Newsday has lots more details about the case in pieces here and here and here.
Another case for addressing prior conviction exception
As detailed in this post, one of my many questions in the wake of the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) concerns how long will it take for the Court to grant cert. on a case directly addressing the status of the Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule. (Recall, as noted here, that Justice Thomas in his Shepard concurrence asserted that " in an appropriate case, this Court should consider Almendarez-Torres' continuing viability [because] [i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres.")
The Supreme Court will likely now be presented with steady stream of cert. petitions requesting it to address the Almendarez-Torres "prior conviction" exception head on. I was sent one such cert. petition recently and provide it for downloading below. Here is the opening paragraph:
This Court should grant certiorari to overrule Almendarez- Torres v. United States, 523 U.S. 224 (1998). That decision is fundamentally incompatible with the Sixth Amendment principles expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, and has been disapproved by a majority of this Court. Its validity was called into question by five members of this Court just two years after it was decided; it simply has not been formally overruled. Now that the limits of Apprendi have been tested and its fundamental rationale repeatedly reaffirmed, the time is ripe to revisit the nowanomalous decision in Almendarez-Torres. Such review is particularly timely, given the recent reconfirmation by a member of the Almendarez-Torres majority that that case was wrongly decided and should be reconsidered. See Shepard v. United States, __ S. Ct. __, 2005 WL 516494, at *9 (Mar. 7, 2005) (Thomas, J., concurring in part and concurring in the judgment).
March 18, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
March 17, 2005
Booker and crack/powder cocaine sentencing
As detailed in this post, earlier this month Judge Adelman in US v. Smith, No. 02-CR-163 (E.D. Wisc. Mar. 3, 2005), used his new post-Booker authority to address the disparity between crack and powder cocaine sentencing. I have recently been hearing reports of a number of other district judges taking similar action, and this afternoon I was informed that EDNY District Judge Charles Sifton today issued a lengthy decision in US v. Simon, 90 CR 216, in which Judge Sifton rules, inter alia, that post-Booker courts do not have to follow the 100:1 crack-powder ratio.
I hope to soon be able to provide more information about exactly what Simon says, though in the meantime I would be grateful for readers to use the comments to report other developments in the arena of crack/powder cocaine sentencing.
UPDATE: Thanks to Michael Ausbrook over at INCourts, I can now post a copy of Judge Sifton's remarkable opinion in US v. Simon, No. CR-90-216 (E.D.N.Y. Mar. 17, 2005). Though Simon is perhaps most notable for its extended crack sentencing analysis, the opinion also insightfully covers what weight the guidelines are to be given post-Booker and also has a thoughtful and thorough discussion of the purposes of punishment.
Folks interested in crack cocaine issues post-Booker should, in addition to downloading Simon, also check out recent opinions by Judge Ponsor in US v. Thomas, 2005 U.S. Dist. LEXIS 3972 (D. Mass. Mar. 14, 2005), and by Judge Robinson in US v. Harris, 2005 U.S. Dist. LEXIS 3958 (D.D.C. Mar. 7, 2005).
New (depressing) report on women and increased incarceration
Yesterday I reported in this post on a new (depressing) report on race and increased incarceration from the Justice Policy Institute. Today, the ACLU brings us a new (depressing) report on women and increased incarceration entitled "Caught in the Net: the Impact of Drug Policies on Women & Families." Grits for Breakfast has terrific coverage of the ACLU report here, and this press release provides more background on the report and the issues it covers.
The full report can be access at this link, and here are some passages from the report's Executive Summary:
Federal and state drug laws and policies over the past twenty years have had specific, devastating, and disparate effects on women, and particularly women of color and low income women. These effects require further study and careful consideration as state and federal decision-makers evaluate existing and prospective drug laws and policies.
Reliance on the criminal justice system to reduce use, abuse, and sale of illegal drugs has had little effect on the supply and demand of these drugs in the United States. It has, however, led to sky-rocketing rates of incarceration of women.
Nationally, there are now more than eight times as many women incarcerated in state and federal prisons and local jails as there were in 1980, increasing in number from 12,300 in 1980 to 182,271 by 2002....
The underlying circumstances contributing to the dramatic increase in women's incarceration for drug offenses, including patterns of women's drug use, barriers to seeking and obtaining treatment, lack of effective and appropriate treatment for women, the nature of women's involvement in the drug trade, and patterns of prosecution and sentencing of women for drug offenses, have yet to be thoroughly examined and addressed by researchers or policy makers. Available research in these areas indicates a strong connection between women's experiences of violence and economic and social pressures, and their drug use or involvement in the drug trade.
Celebrity federal defendant update
As others have noted here and here, oral arguments in Martha Stewart's appeal were held this morning before the Second Circuit. I think Martha would be entitled to a remand for resentencing on Booker grounds, though I suspect at this point she may only be seeking a reversal of her conviction. Indeed, I wonder if sentencing issues were even raised at the oral arguments.
Of greater Booker excitement, the sentencing of former Connecticut Governor Rowland is scheduled for tomorrow, and this article reports that Rowland's lawyers have filed a sentencing memorandum requesting a sentence below the guideline range of 15-21 months of imprisonment. (I'd love to know if the memorandum seeks a departure, a variance, or both.) The article suggests that the government's sentencing memorandum to be filed later today may ask for a sentence greater than 21 months.
I pondered in this post earlier this week what sentence Rowland should get under Booker. Most commentors predicted a within-range sentence. Interestingly, this Hartford Courant editorial asserts that "[e]ven the maximum penalty of five years for the charge should be considered blessedly short" for Rowland.
UPDATE: Thanks to this post from Kirby's Reports, I now know prosecutors are recommending that Rowland receive a sentence between 30 and 37 months. It will be very interesting to see what District Judge Dorsey decides.
More Sixth Circuit plain error remands
Yesterday was a particularly notable day for Booker developments in the circuits, with the First Circuit's remand in MacKinnon (basics here, commentary from PRACDL Blog here), the Fourth Circuit's reiteration of its approach to plain error in Hughes (discussed here), and the Eighth Circuit's work on reasonableness in Rogers (details here) and harmless error in Haidley (details here). But we should never forget to check in with the Sixth Circuit, since it is always keeping Booker busy.
And yet the Booker story in the Sixth Circuit is getting a bit dull, even though the court remains Booker active. The Sixth Circuit is now quite consistently remanding plain error cases on the authority of Oliver and Barnett. For example, today we get such remands in the published case of US v. McCraven, No. 03-6311 (6th Cir. Mar. 17, 2005) (available here), and in the unpublished dispositions in US v. Howard, No. 04-5240 (6th Cir. Mar. 17, 2005) (available here), US v. Susewitt, No. 03-6572 (6th Cir. Mar. 17, 2005) (available here), US v. Bowman, No. 04-5102 (6th Cir. Mar. 17, 2005) (available here). And yesterday brought similar unpublished dispositions in US v. Funk, No. 03-4559 (6th Cir. Mar. 15, 2005) (available here), US v. Green, No. 04-1499 (6th Cir. Mar. 16, 2005) (available here).
An insightful snapshot of Smylie
The biggest recent development in the always intriguing Blakely in the states storyline was last week's Smylie decision by the Indiana Supreme Court which applied Blakely to Indiana's sentencing scheme (basics here, commentary here and here). Indiana attorney Michael Limrick has produced an terrific article on the case, entitled "Snapshot of Smylie," to appear in a local bar publication. The article, which covers a host of issues that should be relevant to any state struggling with Blakely, can be accessed at this link. Here's the opening paragraph:
On March 9, the Indiana Supreme Court stepped into the Blakely fray and ruled in Smylie v. State that Indiana’s felony sentencing system, as presently written, violates the Sixth Amendment right to trial by jury. Yet, as with seemingly every decision tackling the United States Supreme Court’s recent sentencing jurisprudence, Smylie left more questions than answers. Thus, while an important step, Smylie is hardly the last in Indiana’s trail of litigation following Blakely.
UPDATE: Michael Ausbrook over at INCourts quotes in this post perhaps the most important and far-reaching insights to be found in Michael Limrick's discussion of Smylie.
Notable sentencing items around the blogsphere
Lots of interesting sentencing items on a number of blogs have caught my eye this evening:
- Concerning the death penalty, the ASCBlog has this post of the death penalty after Roper, and the Death Penalty Information Center has a number of intriguing "what's new" items here.
- The Ninth Circuit Blog has this detailed post on the Supreme Court's decision in Shepard (basics here, commentary here and here and here) which explains how the decision provides "rich opportunities for creative litigation" and why "the opinion will have far-reaching effects."
- SCOTUSblog has more in this post on the legal wrangling surrounding the Medellin case concernig foreign nationals on death row (background here).
- CrimProf Blog spotlights here a forthcoming article by Youngjae Lee entitled The Constitutional Right Against Excessive Punishment (available from SSRN at this link), and also has a great collection here of items concerning the cost savings that could flow from alternatives to incarceration.
March 16, 2005
Analyzing the post-Booker sentencing statistics
Because even the latest post-Booker data from the US Sentencing Commission (discussed here) still has only a relatively small sample of cases, it is still too early to make any firm judgments about the ultimate look of the post-Booker sentencing world based on the preliminary data. (Indeed, I have heard that the USSC has not yet received data from certain key federal districts, which could skew the cumulative data.)
Nevertheless, though the jury is still out on post-Booker sentencing realities, it is not too early to be assembling key sentencing statistics and trying to identify some notable patterns. Helpfully, law student Brian Green has done just that by creating a helpful chart setting out pre-Booker and post-Booker sentencing outcomes based on the statistics made available by the USSC.
Brian's helpful chart can be downloaded below, and Brian highlighted in his e-mail to me the "significant increase in above [range] sentencing occurring after Booker" and his concern that commentators are not discussing "the increase in above-guideline-range sentencings." I share Brian's concerns, although I should note my prior posts here and here which question whether due process principles may limit an increase in a post-Booker sentence based on pre-Booker conduct.
Still more summarizing of the post-Booker world
Earlier today in this post I was able to share Professor Daniel Capra's reviews of post-Booker developments in the district and circuit courts. Perhaps inspired by this fellow traveler, Frances Pratt, Research and Writing Attorney in the Office of the Federal Public Defender in Alexandria, Virginia, has updated again her extended outline of post-Booker decisions. This latest version, which now runs 43 pages, can be downloaded below.
Eighth Circuit also speaks on harmless error review
The Eighth Circuit reversal of a sentence as unreasonable today in Rogers (discussed here) is the biggest news of the day from that circuit. However, I now see that the Eighth Circuit also issued a major decision today discussing post-Booker harmless error review in US v. Haidley, No. 04-3312 (8th Cir. Mar. 16, 2005) (available here).
In Haidley, the defendant had preserved a challenge to the guidelines, though her case did not raise a Sixth Amendment issue because she had admitted the amount of loss involved in the offense. Explained the court:
The issue we face, then, may be framed as follows. Is it harmless error to sentence a defendant under a mandatory federal sentencing guideline regime, as opposed to the Booker advisory system, when there is no Sixth Amendment issue as to the guideline computation and the defendant is sentenced at the bottom of the federal sentencing guideline range? We conclude that it is not harmless error and that the present case must be remanded for resentencing under the discretionary system set out in Booker.
The Eighth Circuit's explanation of this harmless-error conclusion is interesting, as it (1) ducks the issue of whether application of mandatory guidelines is an error "of constitutional or nonconstitutional magnitude," (2) speaks broadly to issues made relevant by 3553(a), and (3) distinguishes the Eighth Circuit's questionable post-Booker ruling in Parsons (discussed here).
Relatedly, in two brief unpublished decisions, US v. Toelle, No. 04-3010 (8th Cir. Mar. 16, 2005) (available here) and US v. Alford, No. 04-3407 (8th Cir. Mar. 16, 2005) (available here), the Eighth Circuit remands for resentencing on the authority of Haidley.
Hughes is back (and better than ever?) in the Fourth Circuit
The Fourth Circuit, which had me scratching my head in this post when the panel which decided Hughes and established the circuit's plain error standard granted rehearing, has now reissued its Hughes opinion. The opinion, which is available here, stays true to its original holding (background here), but the court now can explain why it thinks the Eleventh Circuit's approach to plain error in Rodriguez is erroneous. As one person wrote to me: "This is pretty crazy, it is almost like it was personal."
Eighth Circuit finds downward departure sentence unreasonable
The Eighth Circuit today, in US v. Rogers, No. 04-1461 (8th Cir. Mar. 16, 2005) (available here), became I believe the first circuit to reverse a sentence post-Booker on the grounds that it was unreasonable. The district judge in Rogers had departed downward on the basis of extraordinary rehabilitation from a guideline range of 53-61 months down to 5 years of probation. In reversing, the Eighth Circuit explained:
The facts in this case do not show extraordinary or atypical rehabilitation justifying a downward departure. Rogers's reuniting with family and remaining drug-free, while commendable, are not extraordinary or atypical. See United States v. Patterson, 315 F.3d 1044, 1049 (8th Cir. 2003). In the absence of extraordinary or atypical post-offense rehabilitation, the departure was impermissible. However, because the Guidelines are not mandatory, the sentence is reviewed for unreasonableness.
The sentence is unreasonable when measured against the factors of reasonableness set forth in section 3553(a). The possessing-rifle-after-hunting is Rogers's second parole violation in eight months. Earlier, Rogers was found trespassing in a restricted area at Truman Dam, while two men — also on probation for manufacturing a controlled substance — fished nearby with his son in a no-fishing area. Trespassing with felons does not demonstrate respect for the law. See 18 U.S.C. § 3553(a)(2)(A).
Rogers's second parole violation illustrates that parole/probation is not adequate deterrence. See 18 U.S.C. § 3553(a)(2)(B). He understood the terms of parole, yet knowingly possessed the rifle. Moreover, as the violations show, probation would not protect the public from criminal conduct. See 18 U.S.C. § 3553(a)(2)(C).
The sentence of probation does not adequately address the history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). Aside from (admitted) use of marijuana, cocaine, and methamphetamine, Rogers has convictions for assault, stealing, resisting arrest, attempting to manufacture methamphetamine, and trespassing. While the district court was not bound to the suggested range of 51 to 63 months imprisonment, probation is unreasonable.
The sentence of probation does not properly consider Congress's desire to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(6). It is unreasonable to expect that defendants with similar records, guilty of similar conduct, would receive probation.
By the factors in section 3553(a), the district court's sentence was unreasonable. The judgment is VACATED and REMANDED for re-sentencing.