March 25, 2005
Off-line for family time
A trip to the in-laws (who are not — gasp! — wired) means blogging will likely be light perhaps until the latter part of next week. Fortunately, sentencing March madness seems to be calming down a bit — the whirlwind events from earlier this month are linked here and here and here — although the links below reveal that the times are still eventful:
BOOKER DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- District judge reads Shepard to impact post-Booker sentencing
- A potent argument for Apprendi's retroactivity
- All hail the latest USSC post-Booker data
- Post-Booker above-range sentences
- Rowland wrap-up
BOOKER CIRCUIT COURT DEVELOPMENTS
- Anyone counting all the Booker remands and affirmances?
- Notable affirmances in the 10th and 11th Circuits
- Lots and lots more Booker circuit action
- Plain error patterns persist
- DC Circuit joins the plain error fun
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Alaska's Blakely fix is now law
- The Blakely mess in Ohio hits the papers
- Maryland's developing Blakely fix
- New Jersey's view of Smylie and Shepard
- Pondering the state Blakely pipeline
OTHER SENTENCING NEWS AND COMMENTARY
- A potent argument for the death penalty
- Concerns about (and blogsphere buzz on) DP paper
- Ralph Blakely sentenced again
- Lots more SCOTUS Booker GVRs
- How will SCOTUS frame the issue in Cutter?
News from the Ameline en banc argument
Late yesterday, the Ninth Circuit heard argument en banc in Ameline, the case in which the circuit had previously established a broad plain error standard for Booker cases (detailed here). I received a report from someone in attendance that the government suggested the Ninth Circuit adopt the Second Circuit's Crosby "let's ask the district court" plain error standard (explained here) [UPDATE: The government made this suggestion as a fallback]. And apparently the en banc panel seemed warm to the suggestion.
I had previously been told that Ameline had pulled a relatively more liberal en banc panel, and this might explain why the government, for strategic reasons, was prepared to endorse the Crosby approach [UPDATE: as a fallback position], rather than strenuously urge the "defendant must prove" plain error standard adoped by the First, Fifth and Eleventh Circuits.
I hope others who attended the Ameline en banc might use the comments to provide additional reports or information, since I have already received a few e-mails asking about what transpired.
IMPORTANT UPDATE/CORRECTION: I have heard from a number of more reliable sources that the government urged that the Ninth Circuit take the plain error position of the 5th and 11th circuits, and that it is only the fall back position to follow the 2d and 7th circuit approach (and that Michael Dreeben arguing for the goverment explains at fairly great length why that approach is wrong).
More tough post-Booker sentences
I spotlighted in this post the number of above-guideline sentences being imposed post-Booker, and this morning I see in the papers more examples of tough sentencing by federal judges. Though the articles are not entirely clear as to whether these sentences involved upward departures or upward variances, they spotlight that the new post-Booker federal sentencing world is not necessarily a more lenient world:
- This story from Michigan reports on an 80-month sentence in a gun case in which the guideline range was 51 to 63 months.
- This story from Pennsylvania reports on a 499-month sentence in a bank robbery case that was "five years more than was recommended by sentencing guidelines."
- This story from New Jersey reports on a sentence in a fraud case which was even longer than the government sought because prosecutors believed the defendant should get a greater reduction due to his cooperation.
March 24, 2005
Anyone counting all the Booker remands and affirmances?
The US Sentencing Commission, as documented by its latest data report, continues to do a great job tracking post-Booker sentencing outcomes in the district courts. But, especially in light of the circuit split on plain error and all the recent circuit action (recent examples here and here and here), I am getting eager to see some post-Booker circuit data analysis.
Today's happenings would add a lot more data, since I see:
- a bunch of Crosby remands issued today and yesterday from the Second Circuit. See US v. Lewter, No. 04-2546 (2d Cir. Mar. 24, 2005) (available here) and US v. Adomako-Mensah, No. 04-1367 (2d Cir. Mar. 23, 2005); US v. Arbel, No. 04-2365 (2d Cir. Mar. 23, 2005); US v. Mosallem, No. 04-3771 (2d Cir. Mar. 23, 2005)(all listed in this list),
- another three Booker remands from the Sixth Circuit, see US v. Moncivais, No. 02-1657 (6th Cir. Mar. 24, 2005) (available here); US v. Jackson, No. 03-2493 (6th Cir. Mar. 24, 2005) (available here); US v. Carter, No. 04-3330 (6th Cir. Mar. 24, 2005) (available here),
- and two Booker/Paladino remands from the Seventh Circuit, see US v. Spano, No. 03-1110 (7th Cir. Mar. 24, 2005) (available here); US v. Melendez, No. 03-1659 (7th Cir. Mar. 24, 2005) (available here).
Intriguing 7th Circuit career offender ruling
Today in US v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005) (available here), the Seventh Circuit affirmed over various objections a lengthy sentence based on a career offender enhancement. The key legal question was whether the defendant's prior conviction for fleeing a police officer qualified as a "crime of violence," and one of the defendant's arguments was that the Almendarez-Torres prior conviction exception was inapplicable because his case concerned "the nature, not the mere existence, of a previous conviction."
The Seventh Circuit rejected this claim in Rosas on grounds similar to the ruling by the Tenth Circuit in Moore yesterday (discussed here). Explained the Rosas court, "whether a previous offense constitutes crime of violence for purposes of sentencing enhancement is a question of law, whereas Blakely implicates only questions of fact."
Interestingly, after disposing of the defendant's Blakely claim, the Rosas court simply affirmed the defendants guideline sentence without considering any Booker issues.
Two notable decisions from the Eighth Circuit
The Eighth Circuit issued two interesting sentencing opinions today:
- In US v. Painter, No. 03-3484 (8th Cir. Mar. 24, 2005) (available here) the court, applying Taylor and Shepard, concluded a prior state burglary conviction qualified as violent felony under ACCA because the charging document to which defendant pleaded guilty showed he committed generic burglary.
- In US v. Lea, No. 04-3427 (8th Cir. Mar. 24, 2005) (available here), the court remanded for resentencing on Booker grounds, concluding that the defendant, who had preserved a challenge to constitutionality of the guidelines, did not waive his Booker claim in his in plea agreement and the Booker error was not harmless.
Concerns about (and blogsphere buzz on) DP paper
The Sunstein and Vermeule article that I posted here last night, which contends that capital punishment may be morally obligatory if it saves lives through its deterrent effect, is already generating blogsphere buzz. In addition to Eugene Volokh's initial post here, there are now thoughtful discussions of the paper at Crooked Timber here (with lots of comments) and at Crescat Senentia here and at Mirror of Justice here and here. Because, as I noted before, this topic intrigues me greatly, I wish to weigh in by highlighting two concerns I have about the paper, one empirical and one normative:
1. An empirical concern: are the data sound? As Karl Keyes notes in this comment and as others in the blogsphere spotlight, Sunstein and Vermeule rely heavily on data which are shaky at best. The authors concede that their arguments depend entirely on evidence that capital punishment deters, and that evidence is hardly conclusive. (Next month at Ohio State, as detailed here, Columbia Prof Jeff Fagan is scheduled to give the annual Reckless Lecture on this topic, and his telling title is "Science and the Illusion of Deterrence in the Death Penalty: Cold Fusion All Over Again.")
2. A normative concern: doesn't the argument prove too much? Sunstein and Vermeule are focused on murders in their discussion of "a life-life tradeoff," but their claims would seem readily extended to other kinds of killings. In my class discussions and in my own thinking, I find the deterrence arguments especially challenging when we consider drunk driving fatalities. Statistics show over 17,000 alcohol-related driving fatalities each year (data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers. (Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests laws and public awareness can have a significant impact on alcohol-related driving fatalities.) Are Sunstein and Vermeule prepared to argue that execution of drunk drivers is morally obligatory (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)?
In short, I ultimately found the Sunstein and Vermeule paper unsatisfying because they duck what I consider to be the really hard questions.
District judge reads Shepard to impact post-Booker sentencing
An astute reader pointed me to a noteworthy district court decision from last week, US v. Harper, No. 1:04-CR-90, 2005 WL 646366 (ED Tex Mar. 17, 2005), which just recently appeared on-line. Seizing upon a sentence in the Shepard majority opinion's statement that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence on any waiver of rights by the defendant," District Judge Ron Clark in Harper reads Shepard as modifying how judges can conduct post-Booker sentencing. Here is the reasoning in Harper (which is intriguing, but I think a bit questionable):
Shepard deals specifically with an interpretation of the Armed Career Criminal Act. However, in light of Booker/Fanfan, that is a distinction without a difference. It seems clear that the Supreme Court has ruled that sentencing enhancements must be based upon jury findings, prior convictions, the court documents and statutory definitions pertinent to such convictions, and admissions by a defendant. Accordingly, a sentence enhancement should not be applied in this case based upon the court's choice of which of two possible inferences may be drawn, by a preponderance of the evidence, from facts admitted by Defendant.
The recent Supreme Court rulings require that more attention be paid to the drafting of plea agreements, and to the presentation of proffers of evidence by the Government, so that facts necessary for enhancements the Government believes should be applied, are clearly established. It is difficult to argue that this is particularly onerous since, as a practical matter, the Government drafts its own proffer of evidence, and in most cases the plea agreement. Based on the court's observation of the practice which has evolved since the decision in Booker/Fanfan, the Government is already including all facts pertinent to sentencing enhancements in plea agreements or in a written "factual basis" signed by the Defendant and defense counsel.
The one level enhancement requested by the Government in this case would have moved the fifty-seven to seventy-one month Guideline range to a range of sixty-three to seventy-eight months. The sentence imposed by the court was sixty months. The change may not seem important, in light of the actual sentence imposed. However, the issue of the proper standard of evidentiary review of sentencing facts, raised by the Government is vitally important. In spite of the Fifth Circuit's recent decision in Mares, this court must respectfully conclude that the even more recent Supreme Court decision in Shepard, requires that sentence enhancements under the guidelines require more than inferences drawn from a preponderance of the evidence.
Notable affirmances in the 10th and 11th Circuits
Unlike all the circuit court Booker fireworks on Tuesday (detailed here), Wednesday was relatively quite save for noteworthy affirmances of sentences in the Tenth and Eleventh Circuits. The Eleventh Circuit's ruling in US v. Dowling, No. 04-10464 (11th Cir, Mar. 23, 2005) (available here) applies the circuit's strict plain error test again, though what makes the case interesting is the court's discussion of when a Booker issue has been preserved.
The Tenth Circuit's ruling in US v. Moore, 2005 WL 668813 (10th Cir. Mar. 23, 2005), is even more interesting because of its extended discussion of Shepard and the the Almendarez-Torres "prior conviction exception" (basics here). In Moore the Tenth Circuit concludes "that Supreme Court precedent, including its recent holdings in United States v. Booker, 125 S.Ct. 738 (2005) and Shepard v. United States, 544 U.S. (2005), do not require the government to charge in an indictment or prove to a jury either the existence of prior convictions or their classification as 'violent felonies.'" The Moore court explains:
Because determining whether a given felony constitutes a "violent felony" is a question of law and not fact, the Sixth Amendment does not require that determination to be made by a jury....
Apprendi and Booker's exception for prior convictions subsumes inquiries into whether a given conviction constitutes a "violent felony." It is a question of law whether a felony meets the statutory definition of a "violent felony," and such a question does not trigger the Sixth Amendment concerns addressed in Booker. Frthermore, determining whether a prior conviction was for a "violent felony" involves an inquiry intimately related to whether a prior conviction exists, and therefore falls within the prior convictions exception to the Apprendi rule. The Court's concerns with prejudice to defendants animating its Almendarez-Torres decision would be present with equal force if a jury were to consider whether three prior crimes constituted "violent felonies."
We therefore conclude that the government need not charge in an indictment and prove to a jury that a defendant's prior conviction constitutes a "violent felony" under § 924(e).
Ralph Blakely sentenced again
As this news account details, Ralph Howard Blakely was sentenced in Washington State Court Tuesday to 35 years' imprisonment following his conviction earlier this month "on two counts of criminal solicitation of first-degree murder for attempting to hire fellow inmate Robbie Juarez to kill his ex-wife Yolanda Blakely and daughter Lorene Blakely." I believe this sentence was imposed by the same state judge that had sentenced Blakely for his prior crime in a way the Supreme Court ultimately deemed unconstitutional. I trust that this latest sentence for Mr. Blakely was imposed in a Blakely-proper manner.
A potent argument for Apprendi's retroactivity
Because they all reach the same conclusion in the same basic way, I have not often noted the many district court rulings that Booker (or Blakely or Apprendi) is not to be applied retroactively to final cases. Also, I am often a bit peeved when some of these cases summarily rely on Schriro to support the non-retroactivity conclusion even though, as explained here many months ago, Schriro only concerned retroactive application of the jury right and not the application of the proof beyond a reasonable doubt standard.
These matters issue got my attention recently after I was alerted to a Note in the March 2005 issue of the Harvard Law Review which thoughtfully argues not only that "Apprendi's reasonable doubt holding demands retroactive application," but also that the holding in Schriro actually supports the retroactivity of Apprendi's reasonable doubt holding. See Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005).
Of course, prisoners with final convictions need to hope this Note's potent arguments capture the attention of some courts. Ever biased by my Gannett House days, I close by suggesting that the power of a Harvard Law Review Note should not be understated. After all, District Judge Young's opinion in Green, which presaged Blakely (details here), relied heavily on a HLR Note, and Justice Breyer cited an HLR comment on Blakely at the tail end of his Booker dissent.
March 23, 2005
A potent argument for the death penalty
Thanks to this post by Eugene Volokh at the The Volokh Conspiracy, I see that University of Chicago Law Professors Cass R. Sunstein and Adrian Vermeule have produced an interesting paper on capital punishment entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs." The paper's abstract and a link for downloading are available here.
As Eugene highlights, this article makes a number of significant points, and the (well-deserved) reputation of Sunstein and Vermeule will likely ensure the paper garners attention outside the blogsphere. I find the topic and approach pursued by Sunstein and Vermeule quite engaging, in part because every year I challenge students to make arguments against the death penalty if they first assume capital punishment does deter and thereby saves a certain number of innocent lives. In their paper, Sunstein and Vermeule build on recent deterrence literature to suggest that capital punishment may in fact be morally obligatory.
If time and energy permits, I hope to comment more on this work soon. In the meantime, readers are highly encouraged to weigh in with comments.
All hail the latest USSC post-Booker data
As I had hoped in this post, the US Sentencing Commission has updated and made available here the latest post-Booker sentencing data. This latest data memo reports on data through March 15, and now covers over 5,200 cases. Again, the cumulative numbers have not changed dramatically from prior reports (discussed here and here), although the total number of within-guideline and above-guideline sentences have gone down slightly.
Among the cool features of the latest USSC data memo is a set of helpful graphs, with the pie charts on the final page comparing post-Booker and Fiscal Year 2002 numbers providing most of the important highlights. In addition, the USSC indicates in these materials, with the help of a cool bar chart, that post-Booker "case receipt is only now reaching the expected average 270-280 cases per day."
I have not heard if anything else noteworthy happened this morning at today's USSC public meeting, but I remain ever grateful for the USSC's continuing efforts to disseminate post-Booker data "in real time."
Post-Booker above-range sentences
One of the many interesting stories in the early post-Booker statistics coming from US Sentencing Commission — which can be accessed from the USSC and which I hope will be updated soon [UPDATE: the new data is now available at this link] — concerns the number of above-guideline sentences being imposed post-Booker. Historically, as reflected in this USSC chart of departure rates from 1998 to 2002, less than 1% of all sentences involved upward departures. But the early post-Booker statistics show a marked increase in above-guideline sentences (although they still comprise only just over 2% of the total cases).
As I spotlighted in posts here and here, there is a serious question whether due process/ex post facto principles permit a post-Booker sentence increase above the applicable guidelines range based on pre-Booker conduct. (Notably, Judge Goodwin in his fantastic opinion in Gray, which provides the most thoughtful post-Booker account of due process/ex post facto issues, expressly declined "to reach the question of whether there would be ex post facto implications had this court sentenced the defendants to a term of imprisonment above their individual advisory Guideline ranges.") I wonder if due process/ex post facto issues are being raised in all the cases in which above-guideline sentences are being imposed post-Booker and also whether these sentences will be appealed.
Providing anecdotal insights on this phenomenon, I noticed this morning two newspaper accounts of federal sentencings in which the defendant apparently received significant above-guideline sentences. This article from Louisiana reports on a sentence of 114 months in an assault case in which the guideline range was reportedly 46-57 months, and this article from New Jersey reports on a sentence of 90 months in an immigration case in which the guideline range was reportedly 51-71 months. The articles are not entirely clear as to whether these sentences involved upward departures or upward variances (or maybe even a recalculated guideline range), but they both spotlight another interesting aspect of the new post-Booker federal sentencing world.
Alaska's Blakely fix is now law
Earlier this month I reported here on the bill in Alaska designed to bring the state's sentencing system into compliance with Blakely. This article indicates that Alaska's Blakely fix became law on Tuesday.
I believe the new sentencing law in Alaska expands sentencing ranges, but also provides for jury consideration of certain sentencing-enhancing aggravators. Thus, it appears that Alaska has adopted, through legislation, a remedy for its sentencing system that involves a little bit of Booker-izing and a little bit of Blakely-izing.
UPDATE: Additional information about Alaska's Blakely fix can be found in this press release, which also has links to the complete bill text and this fact sheet on the legislation. The press release quotes one Alaska legislator as saying "The Blakely decision had the effect of throwing our entire criminal justice system into turmoil." And the fact sheet indicates that one aspect of the new legislation "[p]rovides a defendant the right to petition the Court of Appeals on grounds of excessiveness when a sentence is handed down within a range."
Capitalizing on capital funding?
As detailed in this post from last month, I was surprised and intrigued that President Bush's 2005 State of the Union address included a commitment to fund special training for defense counsel in death penalty cases. As detailed in this fascinating Legal Times article, I was not the only one surprised and intrigued by this passage in the speech. Moreover, the Legal Times article is a must-read for persons concerned about the administration of capital punishment: it thoughtfully explores the state of capital defense and also reveals a considerable backstory to the White House's sudden commitment to capital defense funding.
March 22, 2005
Lots and lots more Booker circuit action
This morning I noted here that the circuit were settling into their plain error patterns, and this afternoon brings a lot more of the same. Indeed, today may set a record for Booker circuit decisions, and there are a few notable developments in some of these cases:
- From the First Circuit, no new Booker decisions, but the PRACDL Blog notes here that a Booker remand was ultimately ordered in Antonakopoulos, the case in which the Circuit adopted its tough plain error standard.
- From the Second Circuit, another Crosby remand in US v. D`Oliveira, No. 04-2736 (2d Cir. Mar. 22, 2005) (available here).
- From the Third Circuit, Booker remands in US v. Spivey, No. 04-2057 (3d Cir. Mar. 22, 2005) (available here) and US v. Simmons, No. 03-2013 (3d Cir. Mar. 22, 2005) (available here). Spivey in interesting because it has the most express plain error discussion of any Third Circuit opinion, although the discussion is still opaque.
- From the Sixth Circuit, today there were three Booker remands which are noted and linked in this post.
- From the Seventh Circuit, another Paladino remand in US v. Re, No. 03-2089 (7th Cir. Mar. 22, 2005) (available here).
- From the Eighth Circuit, a rote Booker remand in US v. Adams, No. 03-2138 (8th Cir. Mar. 22, 2005) (available here), a case in which the defendant had preserved his Sixth Amendment claim in the district court.
- From the Eleventh Circuit, a Booker remand in US v. Garcia, No. 03-10350 (11th Cir. Mar. 22, 2005) (available here). Garcia is interesting (and suspect?) because it remands without going through the Circuit's standard plain-error analysis in Rodriguez (though it is unclear whether the defendant's claim was deemed preserved).
Interesting reports from the Wisconsin Sentencing Commission
In the fledgling days of this blog, before Blakely came along, I was trying to make a habit of periodically highlighting the interesting and important sentencing research and analysis being done by state commissions and agencies. (See, for example, early posts spotlighting materials from Alabama, from Alaska, and from Oklahoma.)
An e-mail I received today about two new reports from the Wisconsin Sentencing Commission suggested I should get back into this practice. The new Wisconsin reports are this summary of recent focus groups conducted with state judges concerning substance abuse treatment, and this semi-annual report examining burglary sentencing in Wisconsin. Of perhaps even broader interest to a broader audience, this webpage on the Commission's site collects materials and links to a broad array of research on various issues of concern to state criminal justice and sentencing systems.
More USSC data coming soon?
I see from the US Sentencing Commission's website here that a public meeting is scheduled for tomorrow morning and a post-Booker update is on the agenda. Assuming the USSC has updated the memo in this post, I am hopeful we may see soon a report of sentencing data through two full months post-Booker.
In addition, I am hopeful the USSC will soon have a large enough case sample to break-down the cumulative post-Booker statistics so that we can have a more detailed understanding of what sorts of cases in what jurisdictions are within the guidelines, are subject to departures, and are subject to variances. Also, while I am making my (unreasonable?) data wish list, I would also like to see some post-Booker circuit data.
AEDPA death penalty ruling from SCOTUS today
Criminal defendants and prisoners have been on something of a winning streak in the Supreme Court this Term, although the government has prevailed more often in capital cases and Fourth Amendment cases. Today, as detailed in this post from SCOTUSblog, the Supreme Court found for the government in a capital case and in a Fourth Amendment case.
Today's capital case was Brown v. Payton, No. 03-1039 (S. Ct. Mar. 22, 2005) (available here), and it concerned jury instructions regarding mitigating factors. The Ninth Circuit had granted habeas relief to the capital defendant, but the Supreme Court, in an 5-3 decision with the Court's opinion written by Justice Kennedy, focused on the AEDPA habeas standards and held that habeas relief should not have been granted because the California Supreme Court's affirmance of the defendant's sentence was not unreasonable.