March 22, 2005
Plain error patterns persist
The plain-error story in the circuits continues to settle into the three-way circuit split, with the Fifth Circuit showing in its recent decisions that it will seriously require a defendant to make a prejudice showing to get a Booker remand. In US v. Infante, No. 02-50665, 2005 U.S. App. LEXIS 4571 (5th Cir. Mar. 21, 2005), and US v. Pratt, No. 04-30446, 2005 U.S. App. LEXIS 4546 (5th Cir. Mar. 18, 2005), the Fifth Circuit noted that the district court had not sentenced at the bottom of the applicable guideline range to concluded that the defendant did not meet his plain-error burden.
Meanwhile, I see from this list of recent Second Circuit decisions that the court continues its Crosby remand approach. See, e.g., US v. Gerancon, No. 03-1631 (2d Cir. Mar. 21, 2005) (available here); US v. Rodney, No. 04-2925 (2d Cir. Mar. 21, 2005) (available here). In addition, this morning brings three Booker remands from the Sixth Circuit. See US v. Sawaf, No. 02-6169 (6th Cir. Mar. 22, 2005) (available here); US v. Kosinski, No. 03-2414 (6th Cir. Mar. 22, 2005) (available here); US v. Sawyers, No. 04-5050 (6th Cir. Mar. 22, 2005) (available here).
Indeed, the plain error story is now getting a bit boring, although the DC Circuit's brief entry into the story late last week in Smith was noteworthy. Also, we are still awaiting rulings from en banc courts in the 8th and 10th Circuits, which heard arguments two weeks ago, and the 9th Circuit is due to have its en banc Ameline arguments this Thursday.
Pondering the state Blakely pipeline
Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon). That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .
First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in. My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved. Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.
Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement). Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process. Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.
Maryland's developing Blakely fix
Because Maryland has an advisory guideline system, I did not think that Blakely could make the Old Line State crabby. But I have recently been informed that two bills, which are designed to convert some statutory penalty enhancements into offense elements, have been making their way around the Maryland legislature.
This Fiscal and Policy Note provides background on the Maryland House bill. Here are some explanatory highlights:
Maryland has a largely indeterminate sentencing structure that features, in most instances, only a maximum statutory sentence. While Maryland does have a sentencing guideline system to try to provide greater uniformity of sentencing for offenses, it is a discretionary system rather than mandatory and is usually not based on a finding of additional facts to determine the length of sentence.
However, Maryland does have a handful of statutory crimes that provide for enhanced penalties based on the existence of certain facts beyond the elements of the underlying crime. The committee has recommended the enactment of legislation during the 2005 legislative session to correct this apparent defect under Blakely and Apprendi by repealing the factual penalty enhancement in the penalty provisions and to place the factual circumstance that leads to the increased penalty into the factual elements of the underlying offense to be charged as its own, separate, new offense.
March 21, 2005
New Jersey's view of Smylie and Shepard
As detailed here and here, last week the New Jersey Supreme Court heard arguments on three major Blakely cases. Following the arguments, the state sent the NJ Supreme Court two follow-up letters, which can be downloaded below, concerning the meaning and impact of the Indiana Supreme Court's decision in Smylie (basics here, commentary here and here and here), and the US Supreme Court's decision in Shepard (basics here, commentary here and here and here).
These follow-up letters are interesting not only for the accounts they give of Smylie and Shepard but also as another example of how differently the Supreme Court's rulings in Blakely and Booker can be understood and characterized.
A missing Shepard issue?
The Eighth Circuit today in an unpublished decision US v. Muro-Mendoza, No. 04-3098 (8th Cir. Mar. 21, 2005) (available here) affirmed a sentence in an illegal reentry case by relying heavily on the Almendarez-Torres "prior conviction" exception. The case caught my eye in part because the defendant in Muro-Mendoza seems to dispute the nature of his prior convictions and also because the Eighth Circuit does not cite or mention the Shepard decision, the Supreme Court's latest work in this arena.
Because I remain unsure what Shepard even means for the Almendarez-Torres "prior conviction" exception, I cannot quickly figure out if there was even a viable Shepard claim in Muro-Mendoza. But I think the fact that Shepard is not even mentioned by the Eighth Circuit in Muro-Mendoza is telling.
The Blakely mess in Ohio hits the papers
As I spotlighted here last week, the recent application of Blakely to Ohio's sentencing laws by Ohio's First Appellate District's in Montgomery (available here) and Bruce (available here) marked a significant turning point in the story of Blakely in Ohio. (General background on Blakely's application to Ohio's sentencing laws can be found here and here, with post-Booker developments here and here.) Today, through a pair of interesting articles, the Cincinnati Post highlights some of the fall-out:
- This overview article provides background on the Montgomery and Bruce decisions and details some of the reactions they have prompted.
- This companion article explains that because of concerns "with the uncertainty caused by two recent appeals court rulings, a Hamilton County judge may not send any criminals to prison until it's resolved."
Notably, in State v. Lowery, 2005-Ohio-1181 (1st Dist. Mar. 18, 2005) (available here) the First Appellate District applied Bruce again, but then found other ways to affirm a sentence. Here's the court's summary explanation of its work in Lowery:
We agree with Lowery that Blakely precluded the judicial fact-finding necessary under Ohio's sentencing scheme to impose the maximum sentence for the aggravated robbery because it was among the "worst forms" of the offense. See State v. Bruce, 1st Dist. No. C-040421, 2005-Ohio-373. But we conclude that the court's finding was harmless error because the trial court's imposition of the maximum sentence on an alternative ground, that he posed the "greatest likelihood of future crime," was expressly based on his history of prior convictions and thus did not violate Blakely and was supported by the record. Finally, because the case law surrounding Blakely does not, at least at this time, extend to the judicial findings necessary to impose consecutive sentences, and because the record supports the trial court's findings, we affirm the trial court's decision to run the sentences for the two offenses consecutively.
In this post Saturday, I collected a few accounts of former Connecticut Governor Rowland's federal sentencing (basics here), but the blog Kirby's Reports provides all the links you could ever want and more on the Rowland story in this post.
In addition, that blog has given Connecticut defense attorney Todd Bussert an opportunity to provide this interesting and thoughtful post-game analysis of the Rowland sentencing, which includes some discussion of whether Rowland received a "traditional" departure or a Booker variance. A much different post-game assessment of Rowland's sentence can be found in this Hartford Courant editorial.
Lots more SCOTUS Booker GVRs
As noted here, the Supreme Court is back in action today, and part of its morning work was a bunch more Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker). I count on this order list more than 25 additional Booker GVRs, which combined with all the prior GVRs noted and linked here, takes the count well over 500. I wonder if the SCOTUSblog folks might know if this is some kind of GVR record.
Interestingly, the order list also has one GVR due to Shepard's new guidance on criminal history (basics summarized here, commentary here and here and here), and one GVR due to Dotson's new guidance on legal challenges to parole procedures (background here).
March 20, 2005
How will SCOTUS frame the issue in Cutter?
Tomorrow the Supreme Court is back in action, perhaps with the Chief at the helm for the first time in many months, and it will be hearing arguments in Cutter v. Wilkinson, an interesting case addressing the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA) in the prison context. As I noted here, Cutter is something of a law school civil war because Ohio State professors are on both sides: my colleague David Goldberger is arguing for the prisoners and my colleague Douglas Cole, now serving as Ohio's Solicitor, is arguing for the state. (OSU's Moritz College of Law has assembled materials and briefs on Cutter at this link.)
The Cutter case has garnered a lot of attention because of the religion issues (see this recent news story), but I am intrigued by its criminal justice and federalism aspects. The case is another fascinating example, as I spotlighted here, of the intersection this SCOTUS term of criminal justice, constitutional law, federalism and hot button issues. And the outcome my turn, I think, on whether the Justices view Cutter principally as a religion case, as a prison case, or as a federalism case. Notably, the majority of Justices in the the Court's Johnson decision earlier this year about racial segregation in prisons (basics here) framed that case as about race rather than about prisons or federalism. It will be interesting if changing the issue from race to religion (and adding a congressional statute to the mix) might change the way the case gets framed.
In addition, as I discussed in this post, Cutter arises at an interesting time in church-prison relations. As detailed in interesting articles here and here and here, Florida and some other jurisdictions have been experimenting with "faith-based" prisons, which house inmates who have chosen to take part in rehabilitation programs run by volunteers from religious groups. Though Cutter may not directly impact the faith-based prison movement, the law and policy of religious involvement in corrections will likely be an issue of on-going concern for quite some time.
More Booker in the morning papers
Sunday morning brings more interesting Booker stories in the papers. This article from the Charlottesville Daily Progress provides background on Booker and details how the post-Booker world is playing out in the Western District of Virginia. And this article from the Detroit News reports on the government's appeal of a post-Booker sentence of probation in a pornography case, and it also discusses some interesting plea developments:
In an effort to get more control over sentencing, the U.S. Attorney's Office has rewritten its plea agreements that allow it to withdraw from a deal if a judge goes below an agreed-upon sentence. The defendant may withdraw if the judge exceeds the maximum agreed to under the deal.
Alan Gershel, chief of the criminal division for the U.S. Attorney's Office in Detroit, sent a letter to judges this month explaining its new policy. Some defense lawyers have rejected these offers as not much of a deal, said Miriam Siefer, head of the Federal Defender Office, which represents most people charged with federal crimes. Some judges also have rejected these arrangements.