April 9, 2005
Death penalty items around the blogsphere
A few items concerning the death penalty have caught my eye around the blogsphere:
- The Connecticut Law Blog is covering, as their name would suggest, Connecticut death penalty developments with posts here and here and here reporting on the hearing concerning death row volunteer Michael Ross's competency and a post here on a proposed amendment to the state's death penalty law.
- Dan Markel at PrawfsBlawg discusses here his forthcoming article on the death penalty and also promises future commentary on the recent death penalty article by Professors Sunstein and Vermeule suggesting capital punishment might be morally required, which I noted here and critiqued here.
Retroactivity contrasts and contentions
As noted by Appellate Law & Practice here, the Second Circuit yesterday in Guzman v. United States, No. 03-2446 (2d Cir. Apr. 8, 2005) (available here), expressly held that Booker "does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." This ruling makes a total of five circuits, as detailed here, that have spoken to this issue — the 2d, 6th, 7th, 10th and 11th — and all five have declared Booker is not applicable to cases which became final before the decision.
But the story of retroactivity is much more dynamic than this pattern of federal circuit decisions might suggest. As spotlighted here, this past week a Colorado appellate court in Johnson decided that "[b]ecause Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced." That is, the Colorado court has concluded that Blakely is not a new rule, but rather an application of Apprendi that should be applicable to all cases not yet final in June 2000 when Apprendi was decided.
Moreover, despite the fact that no other courts, to my knowledge, have yet expressly declared Blakely or Booker retroactive, there are a number of interesting arguments being developed to support retroactivity claims. As noted previously here, a recent Harvard Law Review note, Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005), argues that the Supreme Court's decision in Schriro, which most lower courts cite to find against retroactivity, actually supports the retroactive application of Apprendi's reasonable doubt holding. A lawyer from New Jersey recently sent me a letter brief, which can be downloaded below, that builds on this article to argue that "proper application of the retroactivity test of Teague v. Lane requires retroactivity of Apprendi."
Taking a different tack, another lawyer operating in federal court has sent me a motion which argues more broadly that Teague v. Lane is simply not applicable to the question of Booker's retroactive application. That motion, which can also be downloaded below, spotlights that "the U.S. Supreme Court has never held that Teague v. Lane is applicable, either in its entirety or in part, to federal inmate's petitions under § 2255."
I have posted a lot previously about these and related retroactivity issues, and below I have linked some of my major pre-Booker posts discussing retroactivity. Also, all my more recent posts on this topic are collected at this link.
- Thoughts and holdings on Blakely retroactivity
- Thoughts on Retroactivity and Clemency
- More on Blakely's retroactivity
- Pragmatism and Blakely's retroactivity
- Careful retroactivity analysis from WD of Virginia
Summarizing all the Booker action
I was pleased to discover on the US Sentencing Commission's Booker page that the USSC has prepared and posted this extended memo on "Selected Post-Booker Decisions." Running 55 pages, this memo provides an in-depth primer on all the leading district and circuit rulings, but only through March 16, 2005.
A little more up-to-date is the latest version of the extended outline of post-Booker decisions by Frances Pratt, which is available here and now runs 64 pages. That outline is current through April 3. And the most notable rulings since April 3 are linked in this post, including the 10th Circuit's plain-error ruling yesterday in Gonzalez-Huerta which itself serves as a summary of a number of Booker issues.
Booker and Blakely stories shifting to warp speed
After a remarkable March — with major sentencing developments coming from state and federal courts and legislatures (summarized in posts linked here and here and here and here and here) — I was hoping the sentencing world might slow down in April. But, as detailed in my Sunday best? post last weekend, April got off to a flying start. And this past week it seems Booker and Blakely stories have shifted into hyperdrive. Here are just some highlights from this week:
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Colorado court says Blakely retroactive to Apprendi
- Interesting Blakely development in Michigan
- Fascinating state Blakely rulings
- Arguments over Blakely in California
BOOKER "PLAIN-ERROR" DEVELOPMENTS
- 10th Circuit speaks (and speaks and speaks) on plain error!
- DC Circuit speaks on plain error
- Did Cianci receive special consideration from the 1st Circuit?
BOOKER "REASONABLENESS" DEVELOPMENTS
- 2d Circuit finds (extreme) sentence unreasonable
- 8th Circuit on alternative sentence and reasonableness
- Blockbuster 6th Circuit decision on plain error and reasonableness!
- 7th Circuit, per Easterbrook, discusses reasonableness and restitution
OTHER BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY
- Helpful commentary and analysis on recent circuit action
- Government gets 6th Circuit remand (but still may be unhappy)
- Interesting 7th Circuit remand where Blakely error preserved
- Reviewing the big Booker day in the circuits
- A lot of late day Booker circuit action
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- A pattern of white-collar leniency?
- Shaming, remorse, apologies and victims
- Almendarez-Torres Episode Two? (aka The Revenge of Shepard)
- An array of fascinating death penalty materials
- Jury sentencing and apologies, Texas-style
Notable items about blogs
To express thanks for the link, let me note this long article from the Chicago Tribune discussing The Becker-Posner Blog. At the end of the article, this blog is placed on a short list of "Other popular and influential academic and/or legal blogs." I am flattered, but the absence of How Appealing or SCOTUSblog on the list is damning to the article's authoritativeness (or perhaps reflects a geographical bias: no east-coast blog made the list).
10th Circuit speaks (and speaks and speaks) on plain error!
As if the circuits did not give us enough Booker reading this weekend, I have just discovered that on Friday the 10th Circuit produced a book on Booker plain error through its (82-page!) en banc ruling in US v. Gonzalez-Huerta, No. 04-2045 (10th Cir. Apr. 8, 2005) (available here). And just when we all thought all the circuits had settled into the three-way circuit split on plain error, especially with the DC Circuit in Coles jumping on the Crosby/Paladino band-wagon (detailed here), the 10th Circuit spices up the story with Gonzalez-Huerta by affirming the defendant's guideline sentence due to the fourth prong, rather than the third prong, of the plain-error test.
It is impossible to neatly summarize Gonzalez-Huerta, in part because there are a total of six opinions: one for the court, three concurrences, one partial concurrence/partial dissent, and one dissent. The opinion for the court in Gonzalez-Huerta does embrace the "defendant must prove prejudice" for the third prong of the plain-error standard. But, as noted above, the court's affirmance in Gonzalez-Huerta ultimately rests on the fourth prong of plain error because it concludes, based on the facts of the case before it, "that the District Court's mandatory application of the Guidelines was not 'particularly egregious' or a 'miscarriage of justice.'"
Because of all the opinions and their extensive analysis, Gonzalez-Huerta provides the most complete discussion of plain-error issues to date. However, because of all the opinions and their extensive analysis, Gonzalez-Huerta is not a complete model of clarity. Consider, for example, the first paragraph of Judge Ebel's concurring opinion:
I agree with the majority's decision to affirm Gonzalez-Huerta's sentence under the fourth prong of the Olano plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion. However, I disagree with the majority's analysis and conclusion reached under the third prong of the Olano plain-error analysis (Maj. op. sections IIC), and accordingly I do not join those sections of the majority opinion. Regarding the prejudice-prong analysis, I believe that Judge Briscoe got it right, and accordingly, I join Section IV of her concurrence. Regarding the fourth prong of the Olano plain-error analysis, as noted above, I join Section IIE of the majority opinion. I join Part II of Judge Hartz's concurrence. Finally, I add this concurring opinion to offer some additional analysis applicable to the fourth-prong analysis.
April 8, 2005
Colorado court says Blakely retroactive to Apprendi
Providing perhaps the biggest development in a big week, I just got news that yesterday the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (col. App. Apr. 7, 2005) (available here) concluded "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's the court's analysis:
In People v. Bradbury, 68 P.3d 494 (Colo. App. 2002), a division of this court concluded that Apprendi did not apply retroactively because it "established a new rule" and "imposed a new obligation" upon trial courts. People v. Bradbury, supra, 68 P.3d at 497.
We adopt the reasoning in Bradbury and conclude that because Apprendi established a new rule which had the effect of overriding a widespread practice of allowing judges to decide facts used to aggravate sentences, Blakely's interpretation of that rule must necessarily apply retroactively to the date the rule was established. Writing for the majority in Blakely, Justice Scalia clearly limited the holding back to the date of Apprendi when he wrote: "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, supra, 124 S.Ct. at 2537.
Because Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced. We note at least two federal cases which have held that Blakely does not apply retroactively to collateral attacks against convictions. See, e.g., In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); United States v. Stoltz, 325 F. Supp. 2d 982, 987 (D. Minn. 2004). In concluding that retroactive application should be made here, we nevertheless do not apply Blakely to collateral attacks against convictions unless those convictions postdated Apprendi. People v. Dunlap (Colo. App. No. 01CA1082, Sept. 9, 2004).
Booker circuit action does not slow down on Friday
I am just back from an afternoon speaking about sentencing to a group from the National Bar Association in Cincinnati (home of an undefeated baseball team, I must note). And a quick stop at the always helpful Appellate Law & Practice reveals that the Booker circuit action has not slowed down. I see posts from AL&P about notable cases concerning Booker or other sentencing issues from the First Circuit here, from the Second Circuit here, from the Sixth Circuit here and here. And from another source I have seen this order entered by the Fourth Circuit denying the Government's Petitions for Rehearing En Banc in the Hughes (plain error) case.
I hope this weekend to find some time to comment on these and other Booker developments, although I may be distracted by another sporting event if the sun decides to finally come out in Augusta. But the brewing debate over white-collar cases, to be found at this link, will definitely get a few words from me before long.
DC Circuit speaks on plain error
The DC Circuit has been the quietest of the bunch post-Booker, but today the circuit jumped into the plain-error fray with its opinion in US v. Coles, No. 03-3113 (DC Cir. Apr. 8, 2005) (available here). Remarkably, the Coles decision deepens the three-way circuit split on plain error, as the DC Circuit has become the third circuit to adopt the "middle" position of "let's ask when in doubt" plain-error standard. Here is the first paragraph of Coles:
This case raises an important issue left open by the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), concerning the application of the plain-error doctrine to appeals from sentences rendered under the Federal Sentencing Guidelines before the Supreme Court ruled that they are advisory rather than mandatory. In addressing this issue, we align ourselves generally with the decisions of the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and the Seventh Circuit in United States v. Paladino, No. 03- 2296, 2005 WL 435430 (7th Cir. Feb. 25, 2005), reh'g en banc denied, id. (7th Cir. Feb. 25, 2005), and most particularly with the approach adopted by the Seventh Circuit. Because the record is insufficient for us to determine with confidence whether the defendant suffered prejudice from the Booker error in this case, we hereby remand the record to the District Court so that it may determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken place under the post-Booker sentencing regime.
Interesting Blakely development in Michigan
Soon after Blakely was decided last summer, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. That assertion came without full briefing of the issue and, as detailed in this post, is not perfectly obvious to everyone.
Today I received news that last week the Michigan Supreme Court entered the following order in the case of People v Drohan:
On order of the Court, the application for leave to appeal the October 12, 2004 judgment of the Court of Appeals is considered, and it is GRANTED, limited to the issue whether Blakely v Washington, 124 S Ct 2531; 159 L Ed 2d 403 (2004), and United States v Booker, 125 S Ct 738; 160 L Ed 2d 621 (2005), apply to Michigan's sentencing scheme. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the question presented in this case may move the Court for permission to file briefs amicus curiae.
The lower court opinion in Drohan is at People v Drohan, 264 Mich. App. 77, 689 N.W.2d 750 (Mich. App. 2004). In that opinion, Michigan's intermediate appellate court dropped this interesting footnote:
We further note defendant's allegation in a supplemental brief that Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to the sentencing in this case. We disagree with this contention. Indeed, the Michigan Supreme Court noted in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004), that Blakely does not affect Michigan's sentencing system. We disagree with defendant that this statement from Claypool is not binding on us. Nevertheless, given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent.
Arguments over Blakely in California
As noted here yesterday, the California Supreme Court yesterday finally heard arguments on a state Blakely case, and this morning the Sacramento Bee is reporting in this article that the tenor of the arguments suggested that Court might look to avoid Blakely's application in California:
The nation's turmoil over sentencing practices may not be extended to California, justices of the state Supreme Court indicated Thursday, after wrestling with the implications of a wave of rulings by the U.S. Supreme Court.
I am very interested to hear more analysis of these arguments; perhaps readers who watched the arguments might use the comments to share their impressions.
A pattern of white-collar leniency?
Yesterday I questioned in this post whether former Providence Mayor Vincent "Buddy" Cianci and his associates may have received special consideration from the 1st Circuit in its remand decision. And a piece in the New Haven Advocate entitled Incomplete Sentences (available here), which discusses recent sentencings by Connecticut District Judge Peter Dorsey, has me thinking more broadly about whether we might expect white-collar offenders to be the biggest beneficiaries of Booker and the new discretion it affords federal sentencing judges.
The New Haven Advocate piece discusses Judge Dorsey's sentencing of former Connecticut Governor John Rowland and also the below guideline sentence he gave to Sandra Martin, who admitted to stealing nearly $1 million from Fairfield County banks by moving checks among multiple accounts.
FURTHER UPDATE: Ellen Pogdor at White Collar Crim Prof Blog has enriched this discussion with some additional comments here.
The post-Booker world in Delaware
The Delaware News Journal has this article this morning which reports on the application of Booker in the federal courts in Delaware. The article effectively provides a view of the post-Booker world in one district, and it reports, based on statistics apparently provided by the local US Attorney's Office, that sentences below the guideline range have increased significantly in the wake of Booker:
Of the 40 sentences handed down in U.S. District Court in Wilmington since the high court decided the case of United States v. Booker, Delaware federal judges have deviated from the guidelines in 11 instances, according to the U.S. Attorney's Office.
In one of the 11 cases, the court applied the guidelines and ruled they allowed a departure from the normal sentencing range, U.S. Attorney Colm F. Connolly said. "In the other 10 cases, the court declined to follow or apply the guidelines," he said.
Altogether, Delaware judges have departed from the guidelines in 27.5 percent of their sentences since the Booker ruling. In fiscal 2002, Delaware judges departed in only about 10 percent of sentences, according to federal statistics.
In addition to being intrigued by these district-specific statistics, I am also intrigued by the dissemination of this information by the local U.S. Attorney's Office.
April 7, 2005
Helpful commentary and analysis on recent circuit action
As is evidenced by all the posts with numbers in the title recently, the circuits have been a bit Booker manic this week (consider just yesterday's round-up here). I am trying to sift the Booker wheat from the chaff (for fear of getting e-mail complaints), but my eye likely sees too much wheat in all things Booker. Helpfully, the folks running the federal defender websites (assembled here) do a better job than me in spotlighting the really significant cases in the circuits. So:
- The Second Circuit Blog has a post on Doe here, the case in which the Second Circuit declared a sentence unreasonable under Booker (discussed here).
- The Sixth Circuit Blog has a post on Webb here, the case in which the Sixth Circuit expounded at length about reasonableness under Booker in the course of affirming a sentence (discussed here).
- The Seventh Circuit Blog has a post on Newsom here, the case in which the Seventh Circuit had some interesting dicta comments (discussed here).
- The Defense Newsletter blog (which covers the 11th Circuit) has a post on Orundo-Mireles here, the case in which the Eleventh Circuit affirmed a sentence over objections to enhancements based on criminal history (discussed here).
Did Cianci receive special consideration from the 1st Circuit?
As first noted here last night, the First Circuit has remanded for resentencing under Booker the sentence of former Providence Mayor Vincent "Buddy" Cianci and his associates (see news account here). I have been sent the full ruling (cut and pasted from the docket sheet):
4/5/05 ORDER entered by Judge Jeffrey R. Howard, Senior Judge Levin H. Campbell, and Senior Judge Norman H. Stahl. After consideration of the supplemental briefs filed by the parties, we vacate the sentences of the three defendants, Vincent A. Cianci, Jr., Frank E. Corrente, and Richard E. Autiello, and remand the action to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentences should be imposed on remand. So ordered.
Apparently there is no opinion forthcoming. This outcome seems most peculiar since it seems Cianci and his associated did not raise Apprendi/Blakely issues at their (pre-Blakely) sentencings, and thus would need to establish plain error to get a remand. And, recall, that the First Circuit applies the tough plain error standard that requires the defendant to establish prejudice.
Though I have not seen the supplemental Booker briefs filed by the defendants in this case, the government's supplemental Booker brief suggests that prejudice was not a given on the facts of the case. I have a copy of the government's supplemental Booker brief (which, of course, failed to carry the day) available for download below.
Government gets 6th Circuit remand (but still may be unhappy)
In an unpublished disposition in US v. Hairston, No. 04-3038 (6th Cir. Apr. 7, 2005) (available here), the government prevailed in its sentencing appeal, but it might not be happy with the terms of the victory. It received a Booker remand, but along the way the Sixth Circuit spoke favorably about post-offense rehabilitation as grounds for a downward departure.
The government claimed in Hairston that the district court erred in granting an eight-level downward sentencing departure based on extraordinary post-offense rehabilitation. The Sixth Circuit concluded: "In light of Booker, and the fact that the district court sentenced Hairston under the now-erroneous impression that the Guidelines are mandatory, we are convinced that the proper course of action is to vacate Hairston’s sentence and remand for resentencing."
Continuing on, however, the court decided to addresss the departure issue "because the district court will need to consider the correct Guidelines-recommended sentence in fashioning its own post-Booker sentence on remand." And in so doing, the Sixth Circuit states (citations ommitted):
We think that the district court was correct to consider Hairston’s successful efforts to overcome his drug problems and transform his life sufficiently extraordinary to justify a reduction in his sentence for post-offense rehabilitation.
Our view of Hairston's case comports with the result reached under the Sentencing Guidelines by a number of courts, which have considered a variety of factors in determining whether a defendant's efforts at rehabilitation justify a downward departure. While we note that no list of factors can exhaust all relevant considerations in evaluating efforts at post-offense rehabilitation, courts in this context have considered: drug and alcohol rehabilitation; church and community involvement; steady employment, psychiatric treatment/counseling, and support of dependents; and compliance with conditions of pre-trial release.
Interestingly, the Sixth Circuit ended this opinion with a suggestion that the district court better justify the extent of its departure: "While we are convinced that the district court did not err in departing downward under the Guidelines, we instruct the district court on remand to provide a more detailed rationale for the extent of its reduction in Hairston’s sentence so that this Court can properly review for reasonableness on any subsequent appeal."
Interesting 7th Circuit remand where Blakely error preserved
The Seventh Circuit in Paladino has provided for "limited remands" in plain error cases, but today in United States v. Schlifer, No. 04-3398 (7th Cir. Apr. 7, 2005) (available here), the court took another approach in a pre-Booker case in which the defendant had preserved a Blakely challenge. And, along the way, Schlifer covers a range of post-Booker issues.
In Schlifer, the court first rejected an argument that the judge had no authority to decide whether the defendant was a career offender based on a finding that prior offenses were "related." Relying on the prior conviction exception, the Seventh Circuit states there is "no precendent for parsing out the recidivism inquiry." But thereafter the Schlifer court rules that he defendant was still entitled to a new sentencing hearing on Booker grounds. With the Blakely error preserved, the Court rejected the notion that the remedy was a limited remand under Paladino. It also rejected the government's argument that any error was harmless because the sentencing judge had downward departed based on substantial assistance:
This argument has some facial appeal, but it ignores the fact that a sentencing judge, prior to Booker, had the guidelines and the appellate standard of review in mind when fashioning a departure. A departure decision, even if "discretionary," was nevertheless informed by the guidelines and thus sheds little light on what a sentencing judge would have done knowing that the guidelines were advisory.
Interestingly, in rejecting the harmless error argument, the court suggested that, though the district court had denied a downward departure on the ground that the defendant was manufacturing drugs primarily for his own use, "the court might have granted the very same motion had it known that Booker effectively allows greater latitude in making departure decisions." This language might be read to suggest that the Seventh Circuit thinks that Booker gives district courts more authority to grant "departures" even if the "heartland" standard for a departure is not satisfied, although the Court's may have just used an inexact phrase for noting that judges now have authority to "vary" as well as to "depart" from the guidelines.
California Supreme Court arguments in Blakely cases
I have been wondering when the California Supreme Court would hear arguments on its Blakely cases (on which it granted review back in July 2004). Apparently, the time is now, as I have been told that a live webcast of these arguments is playing right now at this link. For background and the briefs in these California Blakely cases, check out this webpage from the First District Appellate Project.
Fascinating state Blakely rulings
With so much Booker action in the circuits (examples here and here), it is dangerously easy to forget about all the interesting state Blakely stories. Fortunately, readers help me discover notable state Blakely developments, and this week I have seen these quite interesting Blakely rulings from state intermediate appellate courts:
- From Arizona, a lengthy decision in State v. Aleman, 2005 WL 749679 (Ariz. App. Div. 2, Apr. 04, 2005), thoughtfully covers a range of Blakely issues surrounding what it calls "Blakely-compliant" and "Blakely-exempt" aggravating factors.
- From Minnesota, a thoughtful decision in State v. Thompson, No. A04-1401 (Minn. App. Apr 05, 2005) (available here), holds that "in order to constitute a valid waiver of the Sixth Amendment right to a jury trial [under Blakely], a defendant must explicitly acknowledge and waive, either in writing or orally on the record, her right to testify, to have prosecution witnesses testify in open court in her presence, to question the prosecution witnesses, and to require any favorable witnesses to testify in her defense."
- From Washington, a thoughtful decision in State v. Griffin, 2005 WL 746052 (Wash. App. Div. 1, Apr. 04, 2005), rejects a Blakely objection to judicial fact-finding to support revoking the defendant's driver's license for one year; the court concluded that the revocation was not a form of "punishment" to which Blakely applied.
Reviewing the big Booker day in the circuits
Wednesdays seem to be a big day for Booker action in the circuit courts, and today was no exception. I earlier reported at some length about some of the day's circuit action, and now I review and supplement the highlights:
First Circuit: Though not appearing in any published opinion (at least not yet), papers are reporting that the court remanded for resentencing under Booker the sentence of former Providence Mayor Vincent "Buddy" Cianci.
Second Circuit: The court in Doe declared a sentence unreasonable under Booker (discussed here).
Fifth Circuit: The court in Gutierrez-Ramirez affirmed a sentence over objections to enhancements based on criminal history (discussed here). The court in two other cases also relied on its tough plain error approach to affirm guideline sentences over Booker objections.
Sixth Circuit: The court in Webb expounded at length about reasonableness under Booker in the course of affirming a sentence (discussed here).
Seventh Circuit: The court in US v. Tedder, No. 03-3345 (7th Cir. Apr. 6, 2005) (available here) reversed based on a guideline calculation error but threw in a bit of Booker dicta at the end of the opinion.
Eighth Circuit: The court in Thompson relied on an identical alternative sentence to affirm a guideline sentence and also found that sentence reasonable (discussed here).
Eleventh Circuit: The court in Orundo-Mireles affirmed a sentence over objections to enhancements based on criminal history (discussed here).
Interesting sufficiency ruling from the 10th Circuit
Coming on-line today is a decision from the 10th Circuit involving what I suspect is a rare reversal of a jury conviction based on insufficiency of the evidence. The circuit's decision in US v. Dunmire, No. 04-3002 (10th Cir. Apr. 5, 2005) (available here), caught my eye because the Court did not disturb an underlying conviction for distributing crack, but it did find that "the government failed to submit sufficient evidence to support the jury's finding that the amount of crack cocaine Defendant agreed to knowingly and intentionally distribute amounted to five or more grams." In other words, the defect of the government's proof did not concern whether the defendant was involved in criminal behavior, but rather whether "the alleged conspirator agreed to distribute a certain quantity of drugs."
An 11th Circuit ruling on prior convictions and Shepard
In addition to all the recent discussion of reasonableness (detailed here), this week has also seen a lot of circuit discussion of criminal history issues. In addition to the work of the 5th Circuit in Gutierrez-Ramirez (discussed here) and the 10th Circuit in Garcia-Rodriguez (discussed here), today the 11th Circuit handed down US v. Orduno-Mireles, No. 04-12630 (11th Cir. Apr. 6, 2005) (available here), which concerned whether certain prior convictions qualified as crimes of violence for purposes of a guideline enhancement. The Eleventh Circuit affirms the defendant's sentence in Orduno-Mireles after discussing at some length a number of Shepard and Booker issues and the "prior conviction exception."
April 7, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits | Permalink | Comments (1) | TrackBack
2d Circuit finds (extreme) sentence unreasonable
Wednesday was a big day for discussions of reasonableness in the circuit courts, with the Sixth Circuit opining at length in Webb (discussed here) and the Eighth Circuit taking a cursory approach in Thompson (discussed here). And the Second Circuit, in an unpublished opinion, got in on the reasonableness fun by declaring (I believe for the first time) a sentence unreasonable under Booker.
The case, US v. Doe, No. 04-1973 (2d Cir. Apr. 6, 2005) (available here), provided relatively little analysis of the meaning of reasonableness, perhaps due in part to the unusual and extreme facts. Here's the bulk of the Second Circuit's discussion:
Doe was convicted of two counts of making false statements on passport applications, in violation of 18 U.S.C. § 1542. The Presentence Report (PSR) recommended a term of six to twelve months of imprisonment. At the time of sentencing Doe had already been incarcerated for approximately eighteen months. Thus, the PSR recommended that Doe be sentenced to "time served" and be released. Because Doe refused to divulge his true name, the district court upwardly departed to the statutory maximum of ten years.
Under United States v. Booker, 125 S. Ct. 738 (2005), and its interpretation of 18 U.S.C. § 3742(e), we review sentencing for reasonableness. In light of the crime charged, the sentencing range recommended, Doe's lack of any provable criminal history, and the district court's inadequate balancing of these factors against the perceived threat posed by Doe, the ten year sentence was unreasonable. While vexing and, as the Government has argued, potentially obstructive of the administrative processes for enforcement of our immigration laws, we find that Doe's refusal to divulge his identity does not justify the sentence imposed upon him.
April 6, 2005
Matthew Hale sentenced
Howard Bashman at How Appealing highlights here portions of reports from newspaper articles concerning the eventful sentencing of white supremacist Matthew Hale to 40 years in prison today. As this Chicago Tribune article details, the 40-year term was the statutory maximum, but also apparently constituted a within-guideline sentence because "Judge James T. Moody found that Hale's solicitation to murder Judge Joan Lefkow was a crime of terrorism -- the first such finding in Chicago's federal court."
8th Circuit on alternative sentence and reasonableness
It's a busy Booker day in the Circuits, as I have already noted interesting rulings from the Fifth and Sixth Circuits and I have also seen, but not yet had a chance to post about, noteworthy decisions from the Second, Tenth and Eleventh Circuits. But this post is about the Eighth Circuit and its decision in US v. Thompson, No. 04-2759 (8th Cir. Apr. 6, 2006) (available here), where the court affirmed a sentence in a felon-in-possession case by relying heavily on the district court's post-Blakely announcement of an alternative sentence identical to the 46-month guideline sentence imposed.
Similar to the Fourth Circuit's recent alternative sentence affirmances noted here and here, the Thompson court concludes that the identical alternative sentence renders any error in applying mandatory guidelines harmless. In contrast to the Fourth Circuit, the Eighth Circuit in Thompson goes on to consider whether the sentence is reasonable. Here is the sum total of that enlightening discussion:
Booker directs that we review Thompson's sentence for unreasonableness, judging it with regard to the factors in 18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 765–766. Having reviewed the record and the factors in § 3553(a), we conclude that Thompson's 46-month sentence is reasonable.
5th Circuit on Shepard and prior convictions
In yet another case highlighting possible disputes over the nature and scope of a defendant's criminal history (such as this 10th Circuit decision from earlier this week), the Fifth Circuit in US v. Gutierrez-Ramirez, No. 04-41742 (5th Cir. Apr. 5, 2005) (available here) reversed a district court application of a guideline enhancement based on a prior conviction for a "drug trafficking offense." The Court held that "the district court erred in using a California abstract of judgment to determine whether the defendant's prior California conviction qualified as a 'drug trafficking offense.'" Along the way, the Fifth Circuit has a chance to discuss Shepard and Booker and a number of circuit precedents struggling with these sorts of questions.
Shaming, remorse, apologies and victims
Over at PrawfsBlawg — a new blog that aspires "to mimic the format and the success of the Volokh Conspiracy [but with] more (or only) center-left commentary" — Dan Markel has this post about the latest shaming case from Boston (previously discussed here and here). As detailed in this prior post on these issues, Dan is not too fond of shaming punishments but I am a bit more agnostic on the issue (e.g., I would likely support giving district judges some discretion to impose (relatively mild) shaming sanctions in lieu of imprisonment terms).
These issues are interesting to think through against the backdrop of this week's debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" taking place at the Legal Affairs' Debate Club. That debate, which I have previously discussed here and here, is starting to explore some alternative punishment models.
More broadly, all of these debates have me thinking even more about the role of victims in our criminal justice system. As first discussed in this post, Congress last year enacted a comprehensive Crime Victims Rights Act and, as detailed in this follow-up post, there are always challenges to incorporating victims and their concerns into the standard sentencing systems. I wonder what victims think about shaming punishments and, more generally, whether novel punishment could in some way help forge better sentencing models.
For those interested in this topics, below I have a list of major posts addressing these topics:
- Pondering a victim's role in sentencing
- More on victims at sentencing
- Jury sentencing and apologies, Texas-style
- Fascinating Debate Club from Legal Affairs this week
- For Shame ... I mean, Against Shame
- Reconsidering shame
- Ain't that a shame
Blockbuster 6th Circuit decision on plain error and reasonableness!
Continuing to lead the way with post-Booker circuit rulings of interest, today the Sixth Circuit in US v. Webb, No. 03-6110 (6th Cir. Apr. 6, 2005) (available here) affirmed a sentence over Booker objections. The Webb decision is interesting in part for its plain error discussion: in an extended analysis, the court finds that the Circuit's Barnett "presumption of prejudice" was rebutted on the facts because "the trial record contains clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime."
But making Webb a true Booker blockbuster is the court's subsequent discussion of reasonableness. Here are just some of the highlights (with a lot of the important points in footnotes):
As the Second Circuit recently noted, "review for 'reasonableness' is not limited to consideration of the length of the sentence." Crosby, 397 F.3d at 114. Instead, we read Booker as instructing appellate courts in determining reasonableness to consider not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination. Thus, we may conclude that a sentence is unreasonable when the district judge fails to "consider" the applicable Guidelines range or neglects to "consider" the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration. We decline, however, to define rigidly at this time either the meaning of reasonableness or the procedures that a district judge must employ in sentencing post-Booker. Instead we believe it prudent to permit a clarification of these concepts to evolve on a case-by-case basis at both the district court and appellate levels. Any specific clarification of the reasonableness standard is also unnecessary in this case, as we conclude that there is nothing in the record which suggests that the district court's sentencing determination was unreasonable.
The district court in reaching its sentencing determination properly calculated and considered the appropriate Guidelines range.FN 6...
FN 6 Although we hold that the district court properly calculated the appropriate Guidelines range in this case, we decline to address whether a district judge must always calculate the precise appropriate Guidelines range in order to comply with Booker. See Crosby, 397 F.3d at 112 (indicating that "precise calculation of the applicable Guidelines range may not be necessary" in certain situations where the district judge imposes a non-Guidelines sentence).
Finally, there is no evidence in the record that the district judge acted unreasonably by, for example, selecting the sentence arbitrarily,FN 8 basing the sentence on impermissible factors, failing to consider pertinent § 3553(a) factors, or giving an unreasonable amount of weight to any pertinent factor.FN 9 Instead the record indicates that the district judge carefully reviewed and weighed all the relevant information provided by Webb, the government, and the probation office before arriving at Webb’s sentence. As a result, we find nothing in the record that indicates that Webb's sentence is an unreasonable one with regard to the length, the factors considered, or the procedures employed by the district court in arriving at Webb’s sentence.FN 10
FN 8 Post-Booker we continue to expect district judges to provide a reasoned explanation for their sentencing decisions in order to facilitate appellate review. See 18 U.S.C. § 3553(c).
FN 9 While we decline to indicate what weight the district courts must give to the appropriate Guidelines range, or any other § 3553(a) factor, we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of "reasonableness," see Crosby, 397 F.3d at 115 (noting that reasonableness is "a concept of flexible meaning, generally lacking precise boundaries"), but is also inconsistent with the Supreme Court's decision in Booker, as such a standard "would effectively re-institute mandatory adherence to the Guidelines." Crosby, 397 F.3d at 115.
FN 10 We do not hold that the procedure followed by the district court in sentencing Webb would be reasonable in every case. Certainly there will be cases in which further procedures are required, particularly now that district judges, unlike the district judge in this case, have more discretion under Booker to determine the proper sentence.
Interesting state sentencing items in the papers
Two newspaper pieces concerning state sentencing guidelines caught my eye this morning:
- From Indiana, this editorial expresses concerns about the Blakely fix (or perhaps it should be called the Smylie fix, basics here, commentary here and here) being considered by the Indiana legislature. Marcia Oddi at the Indiana Law Blog has some discussion of the piece and links to the legislation at this post.
- From Virginia, this article details that "Republican candidates for state attorney general sparred over criminal sentencing guidelines and qualifications during a debate on Tuesday." Interestingly, as the article details, the debate over guidelines was apparently triggered by "a question about a decline in the number of jury trials."
April 5, 2005
A lot of late day Booker circuit action
Just when I thought I was out from covering all the circuit Booker action, they pull me back in. Late today, the First and Eleventh Circuits ordered remands on Booker grounds. Neither case is earth-shattering, but both are interesting.
From the First Circuit, we get US v. Cruzado-Laureano, No. 02-2658 (1st Cir. Apr. 5, 2005) (available here), in which the Court remands because the PSR and the district court relied on the wrong edition of the guidelines. The Court's explanation for its decision to remand includes this assertion:
[Booker] injects even more uncertainty into an attempt by us to reconstruct a sentencing decision by the district court under the 2002 guidelines. Therefore, we conclude that the most prudent course is to vacate the sentence and remand for resentencing under the correct edition of the guidelines.
From the Eleventh Circuit, we get US v. Paz, No. 04-14892 (11th Cir. Apr. 5, 2005) (available here), in which the circuit has its "first opportunity, after United States v. Booker, ... to address the application of harmless error to a sentence imposed using extra-verdict enhancements in a mandatory guideline system." The defendant in Paz had preserved his Blakely/Booker claim and the sentencing judge said expressly he would have given a lower sentence if the guidelines were not binding. On these facts, the Eleventh Circuit easily concludes that the "error committed in sentencing Paz was not harmless beyond a reasonable doubt. On the contrary, it is evident from the sentencing transcript that, had the district court used the guidelines in an advisory fashion, Paz’s sentence would have been shorter."
Almendarez-Torres Episode Two? (aka The Revenge of Shepard)
As stressed in a series of posts last month, the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) was so intriguing in part because the four Justices who kept the Almendarez-Torres "prior conviction exception" just barely alive in Shepard were the four dissenters in Almendarez-Torres. But Justice Thomas, who back in 1998 provided the key fifth vote upholding judicial fact-finding of a prior conviction and thus created what is now the "prior conviction exception" to the Jones-Apprendi rule, asserted in Shepard that Almendarez-Torres "has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and ... in an appropriate case, this Court should consider Almendarez-Torres' continuing viability." (A full explanation of all this is in this post.)
As Lyle Denniston explains in this wonderfully clear report at SCOTUSblog, assistant federal public defender Peter Fleury is now arguing to the Supreme Court that the appropriate case for considering Almendarez-Torres' continuing viability is . . . . . . Almendarez-Torres! As Lyle explains in his post (which covers all the particulars of Supreme Court procedure), "Fleury has asked the Court to reopen the 1998 decision that is the source of that exception: Almendarez-Torres v. United States (decided March 24, 1998, under docket 96-6839)." In Lyle's words: "It may be a long shot, but Fleury deemed it worth a try. The Court may consider the petition later this month."
April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Notable 10th Circuit ruling on prior convictions
Just available on-line today is an interesting decision from the 10th Circuit in US v. Garcia-Rodriguez, No. 04-8047 (10th Cir. Apr. 4, 2005) (available here). The principal sentencing issue in Garcia-Rodriguez concerns the defendant's efforts to challenge the fact that he had two prior convictions, which served in part as the basis for a life sentence. The entire decision is an interesting read with Booker and Shepard elements, but the decision seems most notable for its discussion of the scope of the Almendarez-Torres "prior conviction exception" (basics here).
Here is perhaps the most intriguing paragraph in what is an important decision on various issues relating to the sentencing consideration of prior convictions:
Additionally, this circuit recently concluded that this [prior conviction] exception permits a district court to find facts underlying a prior conviction that are "intimately related" to the whether a prior conviction exists without violating the Sixth Amendment. United States v. Moore, No. 04-8078, __ F.3d __, 2005 WL 668813, at *5 (10th Cir. Mar. 23, 2005) (judge properly made the determination that prior convictions were “violent felonies” subjecting defendant to increased punishment under recidivist statute). [ED. NOTE: Moore is discussed in this post.] The question of whether the defendant is the same person as the one who committed the prior crimes is just such an "intimately related" inquiry. See also United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, __ S. Ct. __, 2005 WL 437775 (2005) (subsidiary finding under recidivist statute that prior offenses were committed on "different occasions" need not have been submitted to a jury); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (same); United States v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001) (fact of prior convictions underlying enhancements in 21 U.S.C. § 841(b)(1) need not be made by a jury). No error occurred in this case because this finding of fact need not have been submitted to the jury.
April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Offender Characteristics | Permalink | Comments (0) | TrackBack
An array of fascinating death penalty materials
All the Blakely and Booker developments have kept me from covering some recent death penalty developments. But today I can make up for lost time by spotlighting an array of fascinating new materials which provide a window into the current state of capital punishment.
First, just released this week is this lengthy report entitled "The Death Penalty in New York" which highlights the testimony of the 170 witnesses at public statewide hearings on the state's death penalty law. This press release provides some highlights, as does this account from the Death Penalty Information Center.
Second, I see that the Death Penalty Information Center has now available here on its website a lengthy examination of the "length of time prisoners spend on death row in the United States before their executions."
Jury sentencing and apologies, Texas-style
This article on the jury sentencing of a defendant for murder from the Texarkana Gazette provides a great reminder that Texas (as well as a few other states) has long had true jury sentencing for certain crimes. As noted in this post nearly a year ago (before Blakely), Professor Nancy King has done ground-breaking work examining non-capital jury sentencing, which she and her co-author right describe as "one of the least understood procedures in contemporary American criminal justice."
In addition, as the newspaper article details, the sentencing involved an (unaccepted) apology from the defendant, who was convicted of murdering a long-time friend during an intoxicated scuffle:
Barfield took the stand during the punishment phase of his trial and expressed sorrow to Burns' family. "I wish I was dead. I'm so sorry this has happened," he testified. Acknowledging he is an alcoholic, Barfield testified that he has been sober since the shooting. "I have not touched a drink since that tragic night and I never will again. I will never touch a gun the rest of my life," he said....
Burns' ex-wife. Donna Burns, addressed Barfield on behalf of the Burns family after the sentence was handed down. She told Barfield he has shown no remorse for the killing. "This has all been about Arnold. You should be ashamed for the position you put your family in. You are the biggest coward in Bowie County," she said....
Burns also told Barfield he will never have her forgiveness for the pain he has caused Burns' son Cody. She told Barfield birthdays and holidays are spent at the cemetery. "Knowing you are in your own private hell is some comfort because you put us in ours," she said.
These passages provide a fascinating case-specific perspective on this week's debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" taking place at the Legal Affairs' Debate Club. That debate, which I first noted here, is already hashing through a number of important sentencing issues.
More from the 6th Circuit on appeal waivers
In this post last month, I explained why I think strong argument can be made after Booker (1) that pre-Blakely appeal waivers should now be unenforceable or (2) that circuit courts should now at least review all appealed sentences for reasonableness. But, as noted here last month, the Sixth Circuit in US v. Bradley, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here), joined a number of other circuits in upholding a pre-Blakely appeal waiver to avoid addressing the merits of a Booker claim.
Today the Sixth Circuit in US v. McGilvery, No. 04-1013 (6th Cir. Apr. 5, 2005) (available here), not only upheld an appeal waiver, but it expressed some frustration about having to even consider the issue through a regular appeal:
The Court and the parties have unnecessarily devoted substantial time and resources on this appeal. In order to avoid similar situations in the future, we strongly encourage the government to promptly file a motion to dismiss the defendant's appeal where the defendant waived his appellate rights as part of a plea agreement, and to attach a copy of the appellate-waiver provision and the transcript of the plea colloquy showing the district court's compliance with Rule 11(b)(1)(N). Once the defendant responds, the matter can then be referred to a motions panel for disposition.
Thoughtful Blakely/Booker analyses around the blogsphere
I noticed tonight that a number of blogs have some thoughtful analyses of legal issues surrounding Blakely or Booker:
- Professor Richard Friedman at The Confrontation Blog has this post which, with the help of uber-SCOTUS litigator Jeff Fisher, insightfully discusses the intersection of Blakely and Crawford.
- Michael Ausbrook at INCourts is posting like crazy about Indiana Blakely cases in the wake of the Indiana Supreme Court's decision in Smylie. I cannot keep up with the specifics, but I note his most recent post asserts that "Blakely just keeps on doing damage as this state's appellate judging corps seeks new and ever more ingenious ways to avoid its requirements --when it wants to."
- Steve Kalar at the Ninth Circuit Blog has this post discussing the Ninth Circuit's recent decision in Gunning; the post explains why this "otherwise insignificant little opinion may have a big impact on Booker remands and the pending Ameline III en banc decision."
- Yuanchung Lee at the Second Circuit Blog has this post discussing the Second Circuit's recent decision in Rubenstein; the post reviews that decision's discussion of reasonableness post-Booker.
April 4, 2005
No shame in Boston sentence
As discussed here, a federal prosecutor in Boston proposed that a former school department employee, who pleaded guilty to swindling $10,000 from school soda machines, wear a sandwich board outside the department's headquarters bearing the text "I STOLE $10,000 FROM THE SCHOOL DEPARTMENT. THIS IS A SERIOUS CRIME. THIS IS PART OF MY PUNISHMENT." Today, the Boston Herald reports here that US District Judge Michael Ponsor refused this request, though the article indicates that Judge Ponsor would "consider making other defendants convicted of public corruption wear a sign advertising their crime and punishment. 'I don't think it's out of the question in an appropriate case,' Ponsor said."
7th Circuit, per Easterbrook, discusses reasonableness and restitution
I noted in this weekend post two circuit cases discussing reasonableness in dicta, and today in an opinion from Judge Easterbrook, the Seventh Circuit has given us more interesting dicta to debate. In US v. George, No. 04-3099 (7th Cir. Apr. 4, 2005) (available here), the Seventh Circuit suggests appellate review under the Booker will resemble "the approach we have taken for decisions to reimprison a person after revoking supervised release." Here are some highlights from George (with citations omitted):
The Supreme Court's decision in Booker shows that the Guidelines continue to inform district judges' decisions. Judges need not rehearse on the record all of the considerations that 18 U.S.C. §3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. That's the approach we have taken for decisions to reimprison a person after revoking supervised release, a subject on which the Guidelines always have been advisory rather than binding. It makes sense to follow the same approach for the Guidelines as a whole in Booker's wake. Chief Judge Randa explained his decision. Had he known that the Guidelines continue to have substantial sway, he might have imposed a sentence closer to 60 months; it is inconceivable that anticipation of the ongoing need to start from and respect the Guidelines' framework would have led to a lower sentence. Any error therefore was harmless.
George does not contend that his actual sentence is unreasonable, the post-Booker standard of appellate review. It is hard to conceive of below-range sentences that would be unreasonably high. George's is not. The United States would have better claim to be the party aggrieved by the district judge's disposition, and it has not appealed.
In addition to this discussion of reasonableness, George also addresses Booker's applicability to restitution awards in the federal system (which depend on judicial fact-finding):
George's contention that Booker requires juries rather than judges to assess restitution is misguided. There is no "statutory maximum" for restitution; indeed, it is not a criminal punishment but instead is a civil remedy administered for convenience by courts that have entered criminal convictions, so the sixth amendment does not apply. We have accordingly held that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not affect restitution, and that conclusion is equally true for Booker.
Fascinating Debate Club from Legal Affairs this week
Last fall, around the time Booker was to be argued before the Supreme Court, the fine folks at Legal Affairs were kind enough to invite me to participate with Professor Stephanos Bibas in their Debate Club focused on the question "Can the Court clean up its Blakely mess?" That debate, which can still be read here, remains relvant six months later (and I must brag a bit by noting that Stephanos and I both suggested that Justice Breyer might have a central hand in creating the post-Booker world).
I bring up Legal Affairs' Debate Club not (only) to toot my own horn, but rather to spotlight this week's debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" This is a great topic, which is set up at Legal Affairs with this introduction:
If a criminal apologizes for what he did wrong, a judge may shorten his sentence. But according to a recent Yale Law Journal article by Stephanos Bibas and Richard Bierschbach, the apology should play a role in more than just decisions about length of punishment. A prosecutor perhaps shouldn't press charges against a petty criminal who shows remorse, and the victims of more serious crimes should be brought face to face with a contrite perpetrator for potential reconciliation. An apology, they argue, could teach a moral lesson to a criminal and help a community recover after an act of violence.
No doubt remorse and apology can benefit victims and communities that have been hurt by crime. But would it be a good idea to relieve a criminal of punishment if he's willing to say he's sorry?
In a post-Booker world in which federal and some state judges will have more sentencing discretion, the import and impact of remorse in the criminal justice system is that much more important. I am very pleased to see Legal Affairs doing another sentencing-related topic, and I encourge everyone to follow this debate.
Still more Booker GVRs and an AEDPA decision
Today's work by the Supreme Court includes another nearly 20 Booker-inspired GVRs (detailed in the order list at this link), as well as a decision in Johnson v. United States concerning the operation of the 1-year limitations period under the AEDPA federal habeas statute.
Details about the nearly 600 prior SCOTUS GVRs on Booker grounds can be found here and here. Because AEDPA makes my head hurt, I'll need some time to figure out if Johnson might have broader significance, though I noticed that the 5-4 decision in Johnson created unusual coalitions of Justices: Justice Souter writes the majority (available here) and is joined by Chief Justice Rehnquist and Justices O'Connor, Thomas and Breyer; Justice Kennedy writes the dissent (available here) and is joined by Justices Stevens, Scalia and Ginsburg. I wonder if these Justices have ever voted in these blocks before.
April 3, 2005
Despite having only a 23-hour day today (and plans to watch, on tape, baseball's season opener), I have celebrated being back in Ohio with a fast internet connection by doing more than my usual Sunday blogging. Here are links to all the posts:
- Circuit dicta suggesting guideline sentence could be unreasonable
- New report on parole from Urban Institute
- A shame-full proposal
- Another alternative sentence affirmance from the 4th Circuit
- A new leader for the Criminal Division of DOJ
- Celebrity sentencing updates
- Reconceptualizing sentencing (in draft)
Also, I see that Grits for Breakfast has also not been slowed by the missing hour, as he has interesting sentencing-related posts today on probation and medical pot bills in Texas and on other legislative issues here and here.
Circuit dicta suggesting guideline sentence could be unreasonable
As hinted in prior posts here and here, I have largely given up trying to track and report all the Booker circuit decisions. With the three-way circuit split on plain error firmly entrenched (although we still await en banc plain-error ruling from the 8th, 9th and 10th Circuits), these days we mostly see unremarkable remands in those circuits not applying the toughest plain error standard, and some affirmances in those circuits applying the toughest plain error standard.
Though some circuit opinions still merit a close read — such as the First Circuit's work in US v. González-Mercado, No. 03-2173 (1st Cir. Apr. 1, 2005) (available here), which is discussed by Appellate Law & Practice here — I plan only to post about decisions that seem to break new ground or raise new ideas. (And I hope readers will help me identify those circuit decisions.)
I noticed this weekend decisions from the Second and Seventh Circuits that meet my new blogging standard because of dicta suggesting that sometimes even a guideline sentence might be found unreasonable post-Booker. The Seventh Circuit's decision in US v. Newsom, No. 03-3366 (7th Cir. Apr. 1, 2005) (available here), does not directly speak to reasonableness, but its concluding comments when remanding a lengthy sentence in a pornography case almost encourages a variance. Here's the key passage from Newsom:
The factors outlined in 18 U.S.C. § 3553(a), which now must directly inform criminal sentencing, reflect the need to take into account factors like the full nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense, and the need to afford adequate deterrence. The district judge may conclude, on remand, that these and the other parts of § 3553(a) can be satisfied by something less than the 324-month sentence derived from the Guidelines grid.
Similarly, the Second Circuit's decision is in US v. Rubenstein, No. 03-2173 (2d Cir. Mar. 31, 2005) (available here), does not speak to reasonableness because it reverses and remands on the basis of a guideline calculation error. But Judge Cardamone concurs in an interesting opinion (available here) in which he directly speaks to the concept of reasonableness and states that a guideline sentence could nonetheless be unreasonable. In his words:
Correct application of the Guidelines is but one factor to be considered under 18 U.S.C. § 3553 in reviewing reasonableness, and it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasonable upon consideration of other factors.
These cases, and especially Judge Cardamone's comments, seem quite important as the plain-error dust settles and the new appellate battleground becomes the meaning of reasonableness review. (Recall that the Fifth Circuit in Mares, as detailed here, nearly suggested that a sentence within the applicable guidelines will be per se reasonable, and I believe the government has been urging as much in its briefs. But my own reading of Booker is more in line with Judge Cardamone's perspective on the need for "plenary" reasonableness review of even within-guideline sentences.)
Reconceptualizing sentencing (in draft)
As noted in this post, I had the honor giving the Keynote Address at The University of Chicago Legal Forum's 19th Annual Symposium this past November. The agenda and details of the event, entitled "Punishment and Crime," can still be found here.
In conjunction with that event, I have completed a draft of an article titled "Reconceptualizing Sentencing," which is slated for publication in the next issue of the University of Chicago Legal Forum. Though I had initially planned to write a short article making a few points, I fear my draft is now a long article making a few-too-many-points.
The fine folks at the Legal Forum have now given me permission to post my full draft of "Reconceptualizing Sentencing." It is available for downloading below, and here is the opening:
The transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable. The field of sentencing, once rightly accused of being "lawless," is now replete with law. Legislatures and sentencing commissions have replaced the discretionary indeterminate sentencing systems that had been dominant for nearly a century with an array of structured or guideline systems to govern sentencing decisionmaking. These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history — a veritable sentencing revolution.
And yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing. The new sentencing laws, the Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, are all conceptually underdeveloped. The basic story of the sentencing revolution, especially in the federal system, has been frequently recounted, but the theories, structures and procedures of modern sentencing decisionmaking have not been deeply examined.
Against this backdrop, it is not all that surprising that the Supreme Court's blockbuster rulings in Blakely v. Washington and United States v. Booker have generated puzzled reactions and some impassioned criticisms, even though the decisions reflect certain fundamentally sound conceptual principles. The drama that has surrounded the Blakely and Booker decisions — and their aftermath — ultimately reflects a collective failure to reconceptualize sentencing in the wake of the sentencing revolution. It also makes more urgent the task of reconceptualizing modern sentencing.
April 3, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
New report on parole from Urban Institute
The Urban Institute, a nonpartisan economic and social policy research organization, has recently produced this interesting new report entitled "Does Parole Work? Analyzing the Impact of Postprison Supervision on Rearrest Outcomes." This important report serves as a reminder that, though parole has been eliminated in the federal system and in some states, parole remains a integral component of many modern sentencing systems.
Based on the report's key findings, it is dangerously easy to conclude that parole does not work. But the full report really has a nuanced set of messages and conclusions, and it also readily concedes "several limitations to [the] data." And the report's research highlights provide another reason for sentencing policy-makers to distinguish between first-time, non-violent offenders and repeat, violent offenders (a point I stressed in my February USSC testimony).
Here are the research highlights taken directly from the Urban Institute's parole report:
- Overall, parole supervision has little effect on rearrest rates of released prisoners. Mandatory parolees, who account for the largest share of released prisoners, fare no better on supervision than similar prisoners released without supervision. In fact, in some cases they fare worse. While discretionary parolees are less likely to be rearrested, this difference narrows (to 4 percentage points) after taking into account personal characteristics and criminal histories.
- Certain prisoners benefit more from supervision — especially discretionary release to supervision — than others. For example, females, individuals with few prior arrests, public order offenders, and technical violators are less likely to be rearrested if supervised after prison. Persons with a combination of these characteristics, representing relatively low-level offenders, exhibit even lower rearrest rates if supervised. Conversely, supervision does not improve rearrest outcomes for some of the higher rate, more serious offenders.
- Of the largest groups of released prisoners — male drug, property, and violent offenders — only property offenders released to discretionary parole benefit from supervision. Violent offenders released to supervision are no less likely to be rearrested than their unsupervised counterparts. For male drug offenders, mandatory release to supervision predicts higher rearrest rates than for unconditional releasees or discretionary parolees.
A shame-full proposal
As discussed here last year, the Ninth Circuit in US v. Gementera, 379 F.3d 596 (9th Cir. 2004), upheld a sentence which, as a condition of supervised release, required a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment." As detailed in posts here and here, the Ninth Circuit's approval of this shaming punishment garnered attention and criticism in various quarters.
According to this article from Massachusetts, the Gementera case has also garnered some important fans. The article reports that a federal prosecutor has proposed that a former school department employee who pleaded guilty to swindling $10,000 from school soda machines wear a sandwich board outside the department's headquarters bearing the text "I STOLE $10,000 FROM THE SCHOOL DEPARTMENT. THIS IS A SERIOUS CRIME. THIS IS PART OF MY PUNISHMENT." The article states that the federal prosecutor, who apparently has filed a motion formally requesting this unique term of probation, "was inspired by" the Gementera case.
Celebrity sentencing updates
There has been news of note the last few days concerning the sentences of some high-profile federal defendants:
- As detailed in this AP story and this article from the Washington Post, federal prosecutors do not think much of Martha Stewart's request to have her sentence reduced now that she has received a Booker remand. (I would be eager to see and share any papers filed in connection with this matters if anyone can send them my way.)
- As detailed in this AP report, Sam Waksal, the biotechnology executive serving seven years for his role in the ImClone Systems stock scandal (which led to Martha Stewart's troubles), is seeking a reduced sentence on Booker grounds. Because I believe Waksal's sentence is "final," he faces an uphill battle to now get help from Booker. But, doctrines aside, White Collar Crime Prof Blog in this post asks some intriguing questions in connection with Waksal's efforts to have his sentence reduced.
- As detailed in this article, former Connecticut Governor John Rowland began serving his year-and-a-day federal prison sentence on Friday. White Collar Crime Prof Blog some important legal basics here.
Another alternative sentence affirmance from the 4th Circuit
I discussed here two recent (unpublished) Fourth Circuit dispositions in cases in which the district court, in the wake of Blakely and before Booker, had announced an alternative sentence just in case the federal guidelines were deemed unconstitutional. On Friday, the Fourth Circuit resolved another such case, and in US v. Washington, No. 04-4721 (4th Cir. Apr. 1, 2005) (available here), the court affirmed a sentence imposed under the guidelines because the "district court also specified an identical alternative sentence of 102 months." In Washington, the Fourth Circuit, as it did the day before in Anderson, No. 04-4621 (available here), said that the announced identical alternative sentence showed that "any error resulting from the sentence imposed by the district court was harmless."
As I think about the dispositions in Anderson and Washington, I must admit to being a bit troubled by the exact harmony of the guideline sentence and the advisory sentence announced by the district court. Also, I think that, in these cases, the Booker opinion may impose upon the Fourth Circuit an obligation to assess independently whether these alternative sentences are "reasonable."
A new leader for the Criminal Division of DOJ
I am back in Ohio after a long time away, and I return to find notable news with Booker implications coming from the executive branch. As detailed in this law.com article and in this post from White Collar Crim Prof Blog, Alice Fisher is to be nominated by President Bush as the new head of the Justice Department's Criminal Division (replacing out-going head Christopher Wray).
Ms. Fisher is a partner at Latham & Watkins (which provides this bio) and she was a Deputy AAG when Michael Chertoff led DOJ's Criminal Division. But, interestingly, she has never served as a federal prosecutor and actually has experience on the defense side in white-collar cases.
Of course, I will be most interested to see how Ms. Fisher might wade into the Booker debate. But other issues may be a higher priority for Ms. FIsher, especially since I am starting to sense that DOJ may be content these days to watch the Booker world unfold for a few more months before pushing for any major legislative responses.