April 16, 2005
More additions for the (endless) sentencing reading list
Though I am still catching up with all of this month's legal developments (highlights here and here and here), my academic reading list continues to grow. In addition to all the articles listed here and here, I am making time to read the following pieces appearing recently on SSRN:
- Trial Distortion and the End of Innocence in Federal Criminal Law by Ronald F. Wright
- Strategic Judging Under the United States Sentencing Guidelines: Instrument Choice Theory and Evidence by Max M. Schanzenbach and Emerson H. Tiller
In addition, Professor Susan Klein and Judge Morris Hoffman were both kind enough to send me their recent articles on Booker with posting permission. Professor Klein's article is entitled "The Return of Federal Judicial Discretion in Criminal Sentencing," and will be published in a symposium issue of the Valparaiso Law Review; Judge Hoffman's article is entitled "Booker, Pragmatism And The Moral Jury." Both are terrific reads and are available below.
UPDATE: I am hopeful, though not certain, that I have fixed technical problems with the Klein article now available here: Download prof_klein_on_booker.doc
Finally, I would be remiss if I did not plug once more my own contributions to this endless reading list: my "Reconceptualizing Sentencing" article, which is slated for publication in the next issue of the University of Chicago Legal Forum, is available at this post; my article "Beyond Blakely and Booker: Pondering Modern Sentencing Process," which is slated for publication in a coming issue of the Journal of Criminal Law & Criminology, is available at this post.
Sentencing world in warp speed
In last week's wrap-up post here, I noted that April started off just as crazed as March — which brought us major sentencing developments from state and federal courts and legislatures (summarized in posts linked here and here and here and here and here). And after this week, which included House and US Sentencing Commission hearings and a stunning array of court rulings, I have concluded that the sentencing world is stuck in warp speed. Below I have links to just some of the action whizzing by:
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Big Blakely doings from where it all started
- Updating the state of Blakely in the states
- Tennessee dodges Blakely, so says divided state supreme court
- Puzzled by Tennessee's Blakely waltz
DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- Judge Gertner speaks on acquitted conduct
- Up-to-date post-Booker data from the USSC
- Big development on federal boot camp
HOUSE AND USSC HEARINGS AND COMMENTARY
- Details concerning the brewing Booker fix
- Questions about the brewing Booker fix
- House hearing wrap-up
- More potent criticisms of H.R. 1528
- The rhetoric and reality surrounding the brewing Booker fix
- Beyond Blakely and Booker: Pondering Process (in draft)
- Fascinating report from this week's USSC hearing
BOOKER "PLAIN-ERROR" DEVELOPMENTS AND COMMENTARY
- More notable circuit rulings (from the blogsphere)
- More plain error action from the 10th Circuit
- A call for SCOTUS action on Booker plain error
OTHER BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY
- 4th Circuit opines on Shepard and the prior conviction exception
- Intriguing (and questionable) 3d Circuit Booker dicta
- So much Booker circuit activity, eager for head-counts
- Big sentencing day at the 8th Circuit
Puzzled by Tennessee's Blakely waltz
The Tennessee Supreme Court's decision in Gomez (details here), which finds Blakely inapplicable to Tennessee's sentencing scheme, is remarkable for many reasons. But its most remarkable feature is that the ruling seems to rest on a complete misunderstanding of Apprendi and Blakely. In the words of a very knowledgeable lawyer who wrote to me about the opinion, "It's just dead wrong."
The majority in Gomez repeatedly emphasizes that Tennessee's sentencing provisions do "not mandate an increased sentence upon a judge's finding of an enhancement factor," slip op. at 26, to support its ruling that Blakely is inapplicable to Tennessee's sentencing scheme. But an increased sentence was not mandated by the Washington guidelines at issue in Blakely or the New Jersey statute at issue in Apprendi or the federal statute at issue in Jones or the capital statute at issue in Ring. Indeed, the constitutional relevance of merely exposing a defendant to a heightened punishment based on a judicial fact-finding, but still leaving it to the judge's discretion whether to impose the heightened punishment, was extensively briefed in Blakely itself. And in footnote 8 of the Blakely opinion Justice Scalia asserts that it is immaterial for Sixth Amendment purposes "[w]hether the judicially determined facts require a sentence enhancement or merely allow it."
Given the Booker ruling and that fact that the pre-Booker federal guidelines did mandate increased sentences, perhaps the confusion in Gomez can be attributed to the confusing work of SCOTUS in Booker. But, tellingly, the state of Tennessee in this Blakely litigation conceded that Blakely applied to Tennessee's sentencing system AND an august Task Force has worked hard on a legislative Blakely fix (details here) because everyone understood that Blakely applies to a sentencing system which merely authorizes, but does not mandate, longer sentences based on facts not found by a jury or admitted by the defendant.
Perhaps I am missing some hidden wisdom in Gomez, but my initial take is that the Tennessee Supreme Court just got it wrong. And, as a result, we now can ponder the interesting questions of (1) whether the Supreme Court might ASAP grant cert. in Gomez or another case from Tennessee to clarify this issue, and (2) whether state supreme courts in California or Ohio or other states, eager to dodge Blakely, might adopt the "reasoning" of Gomez.
Judge Gertner speaks on acquitted conduct
As detailed in a powerful Wall Street Journal article last year (detailed here), the federal sentencing guidelines' relevant conduct rules have historically required judges to consider so-called "acquitted conduct" at sentencing, and the Supreme Court in its 1997 Watts decision declared this practice constitutionally sound. But Blakely and Booker made Watts a questionable precedent, and today US District Judge Nancy Gertner continued to justify her place in my Sentencing Hall of Fame by exploring acquited conduct post-Booker through a decision in US v. Pimental, No. 99-10310-NG (D. Mass. Apr. 15, 2005).
In Pimental, which can be downloaded below, Judge Gertner discusses at length "the continued vitality of the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997), which upheld an increased sentence for the defendant based on acquitted conduct, in light of its recent decision in Booker." Here are just a few highlights from a terrific opinion tackling very important issues:
United States v. Booker substantially undermines the continued vitality of United States v. Watts both by its logic and by its words. It makes absolutely no sense to conclude that the Sixth Amendment is violated whenever facts essential to sentencing have been determined by a judge rather than a jury, Blakely v. Washington, 124 S.Ct. 2531, 2538 (2004), and also conclude that the fruits of the jury’s efforts can be ignored with impunity by the judge in sentencing....
Sentencing today — even post-Booker — is still profoundly influenced by the rules, namely the Guidelines. That is what the remedy opinion admonishes; that is what the post-Booker case law suggests. It is, in effect, a hybrid regime — neither purely discretionary nor mandatory Guidelines. And that fact has certain consequences in terms of the significance of acquitted conduct, and more generally, the procedural protections at sentencing.
To consider acquitted conduct trivializes “legal guilt” or “legal innocence” — which is what a jury decides — in a way that is inconsistent with the tenor of the recent case law.... when a court considers acquitted conduct it is expressly considering facts that the jury verdict not only failed to authorize; it considers facts of which the jury expressly disapproved....
Even if Watts emerged unscathed from Booker, and a judge may consider all facts, including acquitted conduct, the standard of proof to be applied should be beyond a reasonable doubt. As I noted above, we are in a hybrid regime, neither fish (totally indeterminate) nor fowl (totally mandatory.) Whether the Guidelines are presumptively reasonable, carefully considered, or something in between, they continue to play a critical role. Certain facts like the amount of loss continue to assume inordinate importance in the sentencing outcome. So long as they do, they should be tested by our highest standard of proof.
4th Circuit opines on Shepard and the prior conviction exception
On Friday in US v. Washington, No. 03-4867 (4th Cir. Apr. 15, 2005) (available here),the Fourth Circuit had an opportunity to discuss the Supreme Court's recent Shepard decision in the course of an appeal which raised issues concerning "the scope of the 'fact of a prior conviction' exception to the Sixth Amendment protections outlined in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, including United States v. Booker, 125 S. Ct. 738 (2005)."
In a divided 2-1 opinion in Washington, the Fourth Circuit holds that because "the sentencing court relied on facts outside the indictment" of a prior offense which "involved more than the 'fact of a prior conviction' exempted by Apprendi from Sixth Amendment protection," it followed that "Washington's sentence was imposed in violation of his Sixth Amendment rights." The majority in Washington stressed that the sentencing judge found facts about a prior offense, and concluded that Shepard indicated that such fact-finding about a prior conviction was constitutionally problematic.
In a lengthy dissent, Judge Luttig contends "district court's enhancement of Washington's sentence plainly fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court relied upon for its determination that Washington's prior conviction was a crime of violence were those facts recited in the indictment underlying that conviction."
April 15, 2005
Third Circuit dicta fixed (to eliminate a typo)
Yesterday I noted here that the Third Circuit in its King decision dropped a footnote with (intriguing and questionable) Booker dicta indicating that post-Booker enhancements "must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable doubt." (In other words, the Third Circuit seemed to be adopting the remedy of the Booker remedial dissenters, as well as the remedy of the remedial majority.)
I was thus intrigued to see this order from the Third Circuit today amending that footnote, but the amendment merely fixed a typo (the absence of the word "doubt") and did not change the substance. Thus, it appears the panel that dropped this footnote is comfortable with its substance. Interesting.
Tennessee dodges Blakely, so says divided state supreme court
This morning I speculated here, as a follow up to yesterday's major Washington Supreme Court ruling in Hughes about the application of Blakely, that we might be seeing some other state supreme court rulings on Blakely soon. Today the Tennessee State Supreme Court has made me look like a genius by releasing a major Blakely ruling which holds, in a split 3-2 decision, that Tennessee's criminal sentencing laws do not violate the Sixth Amendment guarantee of a jury trial and were not affected by Blakely and Booker.
The decision is Tennessee v. Gomez and Londono, and you can access the majority opinion here and the partial dissent here. Here is just a portion of a lengthy report on the decision that I received via e-mail:
Chief Justice Frank F. Drowota, III, writing for the majority, said enhanced sentences a judge imposed on Edwin Gomez and Jonathan S. Londono were not unconstitutional. The defendants are not entitled to relief based on United States v. Booker and Blakely v. Washington, Drowota wrote. Justices William M. Barker and Janice M. Holder concurred in the decision. "We conclude that Tennessee's sentencing structure does not violate the Sixth Amendment," Drowota wrote.
In a separate concurring/dissenting opinion, Justice E. Riley Anderson disagreed and said the Blakely decision invalidates the enhanced sentences Gomez and Londono received. Anderson was joined in his dissent by Justice Adolpho A. Birch, Jr. "In my view, the presumptive sentences set forth in Tennessee Code Annotated established a fixed point for the defendants' sentences such that the upward departure, based solely on findings made by the trial judge, was imposed in violation of Blakely and therefore violated the defendants' Sixth Amendment right to trial by jury," Anderson wrote....
[The defendants] claimed that under Blakely their sentences should have been the "presumptive minimum" defined by state law. Noting the court's duty "to indulge every presumption in favor of the constitutionality of statutes," the majority rejected the defendants' claim. "In Booker all nine justices agreed that the Sixth Amendment is not implicated by a sentencing statute which permits judge fact-finding, but which does not mandate imposition of any increased sentence upon the judge's finding of a fact," Drowota wrote. The majority explained that, unlike the statutes in Booker and Blakely, Tennessee's sentencing statute does not mandate an increased sentence when a judge finds an enhancement factor. Even after a judge finds an enhancement factor, the judge retains discretion to select any sentence within the statutory range, including the presumptive minimum sentence. The Tennessee statute, Drowota wrote, "does not provide a system which requires or even allows judicial power to infringe upon the province of the jury."
The chief justice wrote, "some defendants will choose to raise and pursue Sixth Amendment Blakely-type claims in the hope that the United States Supreme Court will ultimately disagree with our determination of this issue, and nothing in this decision precludes them from doing so." The majority said its decision is not a "comment upon the work or recommendations" of a Task Force appointed by Governor Phil Bredesen in response to the Blakely decision.
"Determining whether the recommendations of the Task Force should be adopted in whole or in part is a matter for the Governor and the General Assembly," Drowota wrote. The dissent noted the task force proposal would eliminate the statutory presumptive sentence, making the state sentencing act constitutional.
The court also reviewed and unanimously rejected a claim by Gomez and Londono that the testimony by a police detective concerning the statement of another defendant who was tried separately violated their Sixth Amendment right to confrontation.
Beyond Blakely and Booker: Pondering Process (in draft)
The fine folks at the Journal of Criminal Law & Criminology have now given me permission to post a draft of the Foreword I have completed for the journal's Supreme Court Review Issue. The article, which can be downloaded below, is entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process."
This article is sort of a companion piece to my "Reconceptualizing Sentencing" article slated for publication in the next issue of the University of Chicago Legal Forum (which is available at this post). Both articles stresses the conceptual significance of the move away from the rehabilitative model of sentencing, but this article stresses that Blakely and Booker have broad constitutional implications for sentencing procedures beyond just the jury trial right. (Indeed, though written before the appearance of H.R. 1528, the drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and linked here), some ideas in this piece buttress points made by Frank Bowman (available here) and Jim Felman (available here) about constitutional problems with this proposed response to Booker.)
Here is the introduction to "Beyond Blakely and Booker: Pondering Modern Sentencing Process":
The Supreme Court's landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment's right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. The future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court's decisions in Blakely and Booker.
In this foreword, I explain why an important enduring question which emerges from the Supreme Court's recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment's jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court's past and present jurisprudential struggles with procedural rights at sentencing. Part III concludes by briefly sketching some considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems.
More potent criticisms of H.R. 1528
The rapid movement of H.R. 1528, the drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and linked here), through the House Subcommittee on Crime, Terrorism, and Homeland Security has perhaps made it hard for all those concerned with federal sentencing to speak up about the bill. But, in addition to Professor Frank Bowman's letter dissecting and assailing the Booker-inspired provisions of H.R. 1528 (Section 12), which is available here, others are starting to weigh in with criticisms of the bill.
FAMM has this new information about the H.R. 1528 and all of its disconcerting sentencing provisions, and TalkLeft now has this extended post focused on the drug sentencing components of H.R. 1528. In addition, Jim Felman has given me permission to post the text of an e-mail he sent to the House staff which astutuely analyzes and critiques the Booker fix provisions of H.R. 1528. (I put the text in a separate document which can be downloaded below.)
As it explains here, FAMM expects the full House Judiciary Committee to vote on H.R. 1528 as early as next week, and thus there is no time to waste for folks eager to weigh in on this bill. I am hoping the US Sentencing Commission, as well as members of the judiciary, will be able to share their views ASAP about this bill. Indeed, I think the Justice Department also ought to have some official position on the Booker fix provisions, which I suspect has some terms that even federal prosecutors won't like.
April 15, 2005 in Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack
Updating the state of Blakely in the states
Yesterday's major Washington Supreme Court ruling in Hughes about the application of Blakely is a great read, which covers some issues of universal concern (e.g., whether Blakely error can ever be harmless) and some state-specific issues (e.g, whether Washington trial courts can convene special sentencing juries to find facts to support exceptional sentences). (Hughes answers both these questions in the negative, by the way.)
As this newspaper article details, Hughes is having an immediate impact in at least one case in which a jury had been convened to find facts to support an aggravated sentence following a defendant's guilty plea. The article also effectively discussion the possible broader impact of Hughes in Washington.
The arrival of Hughes and other recent state sentencing action suggests it is time to update this post about the state Blakely pipeline. Washington through the Hughes decision now joins four other states which have had their supreme court speak directly to Blakely issues; the others are Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), although some of these rulings avoided more issues than they resolved. And with major Blakely cases having been argued recently in California (details here) and New Jersey (details here), I suspect will we hear more from state supreme courts soon. Also the Ohio Supreme Court now has a set of Blakely cases being briefed, Michigan has granted full review on Blakely issues (details here), and I suspect litigation is moving apace in other major Blakely-impacted stated such as Colorado, New Mexico, North Carolina and Tennessee.
More notable circuit rulings (from the blogsphere)
As I have noted repeatedly of late, there is too much significant Booker circuit action to cover comprehensively. But, as detailed in today's posts concerning cases from the Third and Fifth and Tenth Circuits, I am able (aided by readers) to spotlight some of the more interesting rulings. And, helpfully, a number of others around the blogsphere are also keeping with with some of the Booker circuit action:
- White Collar Crim Prof Blog here has an effective account of a recent First Circuit case articulating and applying the circuits tough plain error standard.
- The Third Circuit Blog here has the details on a case from last week in which the Third Circuit did its usual pro forma remand, but in this case did so despite a seemingly applicable appeal waiver.
- Appellate Law & Practice has reports on interesting sentencing cases from the Second Circuit here and here and from the Eleventh Circuit here.
- UPDATE: And Appellate Law & Practice also brings us here an important ruling from the Fifth Circuit concerning what is needed in the record to preserve Booker error, with accompanying "surprise [about] how little is needed."
April 14, 2005
Big Blakely doings from where it all started
Returning us to the always intriguing state Blakely story, today Washington's state Supreme Court brings us a major decision in Washington v. Hughes, No. 74147-6 (Wash. Apr. 14, 2005) (available here). Here is the court's helpful introduction:
These three cases were consolidated to address (1) the continuing validity of the exceptional sentence provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, (2) whether the exceptional sentences at issue here violated the petitioners' Sixth Amendment jury trial rights, (3) whether Blakely Sixth Amendment violations can ever be deemed harmless, and (4) what is the proper remedy if we find Sixth Amendment violations that are not harmless.
We hold that the exceptional sentence provisions of the SRA are facially constitutional but that the exceptional sentences at issue violated petitioners' Sixth Amendment rights. Because we also hold that Blakely Sixth Amendment violations can never be harmless and that empanelling juries on remand for re-sentencing would usurp the legislature's authority, we remand for imposition of standard range sentences.
The same court also today decided Washington v. Recuenco, No. 74964-7 (Wash. Apr. 14, 2005) (available here), which fills out the state sentencing story with this ruling:
Arturo Recuenco was charged with second degree assault with a deadly weapon enhancement because he assaulted his wife while holding a gun. At trial, the jury returned a guilty verdict on the assault charge and a special verdict that Recuenco was armed with a deadly weapon. But the trial court imposed a sentence enhancement based on Recuenco's being armed with a firearm, which was greater than that for a deadly weapon. This court granted review to consider whether imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm beyond a reasonable doubt violated Recuenco's Sixth Amendment right to a jury trial as defined by Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. As per our reasoning in State v. Hughes, No. 74147-6 (Wash. April 14, 2005), we hold that the trial court's imposition of the firearm enhancement violated Recuenco's Sixth Amendment right to a jury trial. We reverse the Court of Appeals, vacate Recuenco's sentence, and remand for resentencing based on the one-year deadly weapon enhancement supported by the jury's special verdict.
More plain error action from the 10th Circuit
One remarkable feature of the remarkable Tenth Circuit en banc decision on plain error in Gonzalez-Huerta last week (details here) was that the Court stressed that it was only addressing the plain error issue for cases in which the imposed sentencing did not involve a Sixth Amendment violation. The Gonzalez-Huerta decision spotlighted a distinction, like the one I discussed here, between constitutional and non-constitutional errors in applying mandatory guidelines, and it stressed that the court's emphasis on the fort-prong of plain error rested on the plain error below being of the non-constitutional variety Gonzalez-Huerta.
Thanks to an FOB, I now see that the Tenth Circuit yesterday decided, in US v. Dazey, No. 03-6187 (10th Cir. April 13, 2005) (available here), how the plain error analysis is to work in cases with a Sixth Amendment violation. This Dazey opinion is 59 interesting pages (though only the last 15 are on plain error), and it seems to spotlight a few points that other circuits have not made central to their analysis (though the circuit seems generally to follow the approach adopted by the 1st, 5th, and 11th Circuits). The FOB also noted that the Dazey ruling is interesting in part because a panel of the 10th Circuit decided this plain error question while the full Tenth Circuit has the same issue before them in the briefed and argued en banc case of US v. Yazzie, No. 04-2152, which was a companion case to Gonzalez-Huerta.
UPDATE: A helpful reader has now pointed me to another 10th Circuit plain error case decided yesterday. In US v. Trujillo-Terrazas, No. 04-2075 (10th Cir. April 13, 2005) (available here), the court remands for resentencing, in a case without a Sixth Amendment violation, because the district court expressed reservations at the sentencing hearing regarding the mandatory guidelines sentence and because of the "disconnect between the newly relevant § 3553(a) factors and the sentence given to Mr. Trujillo." Notably, this decision seems to apply the principles of Gonzalez-Huerta though it does not expressly cite or discuss this case.
Intriguing (and questionable) 3d Circuit Booker dicta
The Third Circuit has been tight-lipped about Booker because it has adopted the unique (and perhaps legally unsound) practice of simply remanding every case with Booker claims, without any plain error discussion, for resentencing in light of Booker. But today in US v. King, No. 03-4715 (3d Cir. Apr. 14, 2005) (available here), the Third Circuit (in an unpublished decision) dropped a footnote with Booker dicta that is both intriguing and questionable.
Beyond the Booker dicta, King is an interesting case (especially the day before taxes are due). King was convicted and sentenced to prison for tax evasion, and on appeal he objects to a two-level guidelines enhancement for using sophisticated means to accomplish the offense, and he also contends that his prison sentence resulted from the district judge's "personal bias in favor of incarcerating tax evaders." In an extended opinion, the Third Circuit rejects the defendant's claims, though still remands for resentencing under Booker. Along the way, the King court drops this footnote:
Our discussion of the sophisticated means enhancement in no way suggests that a sentencing court must apply such an enhancement even where it might otherwise have been appropriate. It is clear that in the post Booker universe, the district court is free to reject all such enhancements in the appropriate exercise of its discretion. Moreover, to the extent the sentencing court may decide to enhance a sentence based upon factors such as those incorporated into the sophisticated means enhancement, it must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable. That fact finder must be a jury unless a defendant waives his/her right to a jury trial.
Though I may be misreading this footnote, the last two sentences seem to suggest the Third Circuit is adopting the remedy of the remedial dissenters, as well as the remedy of the remedial majority, in Booker. Because the King opinion is unpublished, this Booker dicta might not be consequential in future cases. But this confusing dicta three months after Booker is just another indication of the confusing nature of the Booker ruling.
The reach of relevant conduct
As noted here, I have officially sworn off trying to follow all the Booker circuit action; but I cannot help glancing at recent opinions as time permits. This afternoon I noticed that the Fifth Circuit issued an (unpublished) decision in US v. Fernandez-Pena, No. 04-40681 (5th Cir. Apr. 14, 2005) (available here), which is intriguing mostly as a window on the federal guidelines relevant conduct rules, which are still fully applicable (though now advisory) after Booker.
In Fernandez-Pena, the Fifth Circuit approved in an alien smuggling case the district court's increase of the defendant's guideline sentence based on relevant (and presumably uncharged) conduct of another incident of smuggling which took place "approximately 20 months before the offense of conviction." The defendant asserted that this conduct was too remote to constitute relevant conduct, but the Fifth Circuit concluded that, "in light of the similarity of the offenses, the district court did not clearly err in including the prior conduct as relevant conduct." (The Fernandez-Pena court also concluded that the defendant did not meet his plain-error burden to secure a remand for resentencing on Booker grounds.)
Another morning of interesting sentencing news
Just like yesterday, this morning's newspapers brings an array of interesting and important sentencing reports:
- This article from Washington provides a detailed and intriguing report on a "sentencing phase" jury trial convened to find facts to support an aggravated sentence following a defendant's guilty plea to second-degree murder in a child abuse case.
- This article from Utah reports on a Booker remand from the 10th Circuit, and gives particular attention to the defendant's cooperation (which, by the way, was a central feature of all the 8th Circuit's Booker work yesterday detailed here).
- This article from the New York Times about Eric Rudolph's plea deal, which took the death penalty off the table, provides food-for-thought about whether the real benefit derived from the death penalty comes from its impact on plea bargaining. TalkLeft has this interesting post about the Rudolph deal, which includes a lists of infamous defendants that will likely be sharing a federal prison with Rudolph.
April 13, 2005
So much Booker circuit activity, eager for head-counts
I detailed here some highlights from the Eighth Circuit's copious Booker work today, and I see that Appellate Law & Practice has reports on sentencing cases from the First Circuit (here and here) and the Seventh Circuit Blog spotlights in a series of posts recent sentencing activity from the Seventh Circuit.
But this is only the tip of the circuit sentencing iceberg: this opinion page reveals that the Sixth Circuit today issued more than a half-dozen (unpublished) opinions with sentencing issues, and my quick tour around the other circuits reveals that all but two circuits (the DC and the 9th) have issued numerous sentencing opinions this week. I have officially given up trying to follow all the circuit action; I hope readers will make an effort to point out especially noteworthy and interesting opinions.
As noted here, today the Commission updated its post-Booker district court sentencing data. But all this recent circuit action now makes me eager for some post-Booker circuit court data. Actually, I would first like to see some post-Blakely appellate data; I suspect the sheer quantity of appeals in the federal system has spiked since Blakely. Then I would like to see disposition data from the circuits, both post-Blakely and post-Booker.
I suspect the USSC is overwhelmed just trying to track district court data and other key post-Booker tasks. Moreover, we are all still awaiting the USSC's reports on (pre-Blakely) data from fiscal year 2003, which ended more than 18 months ago. Thus, I am not holding my breath for post-Blakely and post-Booker circuit data anytime soon. Nevertheless, the entire arena of federal sentencing appeals will likely be rich with interesting data whenever it becomes available.
Big sentencing day at the 8th Circuit
The House's consideration of a proposed Booker fix (backgound and highlights here), as well as an active US Sentencing Commission (hearing details here, new data here), have taken me off the circuit Booker beat. But thanks to a few thoughtful readers, I see that today the Eighth Circuit has posted on its opinion website a total of eleven opinions in criminal cases. [Gratuitous Spinal Tap quote: This one goes to eleven."]. Eighth of these opinion seem to address some sentencing issues. Called to my particular attention were a number of expositions of the "reasonableness" standard of review. Below I note and link these cases, along with the descriptions that come directly from the Eighth Circuit's website:
US v. Pizano, No. 04-1348 (8th Cir. Apr. 13, 2005) (available here): In an appeal by the government challenging the extent of the district court's downward departure for substantial assistance under Section 5K1.1., the court finds a departure from a guidelines range of 70-87 months to a sentence of 18 months was not unreasonable; the district court seriously considered the government's recommendation before arriving at its own evaluation of the significance and usefulness of defendant's assistance, and, in accordance with 18 U.S.C. Sec. 3553(c)(2), stated its reasons for departing, which reasons were based on the facts of the case and were related to the nature, extent and significance of the assistance; sentence was consistent with the goals of deterring crime and protecting the public. [PUBLISHED] [Murphy, Author, with Hansen and Melloy, Circuit Judges]
US v. Dalton, No. 04-1361 (8th Cir. Apr. 13, 2005) (available here): In an appeal by the government challenging the extent of the district court's downward departure for substantial assistance under Section 5K1.1, the court finds a departure from the mandatory minimum sentence of 240 months to 60 months was unreasonable; the assistance provided by the defendant was limited, and her cooperation was undercut by the facts that she absconded while on pretrial release and dealt more than six kilograms of methamphetamine while she was on parole from a prior conviction; these facts demonstrated defendant's usefulness was limited and that she had no particular amenability to rehabilitation; an extraordinary reduction must be supported by extraordinary circumstances, and no extraordinary circumstances were shown in this case. Case remanded for resentencing. [PUBLISHED] [Hansen, Author, with Murphy and Melloy, Circuit Judges]
US v. Haack, No. 04-1594 (8th Cir. Apr. 13, 2005) (available here): In an appeal by the government challenging the extent of the district court's downward departure for substantial assistance under Sec. 5K1.1, the court finds a departure from the 120 month mandatory minimum to 18 months was unreasonable and an abuse of discretion; the significance, usefulness, nature and extent of defendant's cooperation did not support the departure; the court also expresses concern that the sentencing court's departure was based, at least in part, on the court's dissatisfaction with the Guidelines, which is neither a proper nor a relevant factor for a departure. Case remanded for resentencing. [PUBLISHED] [Melloy, Author, with Murphy and Hansen, Circuit Judges]
US v. Christenson, No. 04-2084 (8th Cir. Apr. 13, 2005) (available here): In an appeal by the government challenged the extent of the district court's downward departure for substantial assistance under Section 5K1.1, the court finds a 75 percent downward departure was not unreasonable; the court considered the factors set out in 18 U.S.C. Sec. 3553(c) and Section 5K1.1, and based its decision on its evaluation of the extent and usefulness of defendant's cooperation. [PUBLISHED] [Benton, Author, with Smith and Beam, Circuit Judges]
Fascinating report from this week's USSC hearing
Baylor Law Professor Mark Osler, who has previously shared great insights from inside the Beltway, attended this week's USSC hearing and was kind enough to write up a report about what transpired. Though it appears that there was not much Blakely and Booker talk, Mark's report (which can be downloaded below) suggests that the USSC hearing was still great theater. Here's Mark's opening sentence:
Though smaller in scope and size than November's USSC hearings which fell between Blakely and Booker, April's hearings featured plenty of give and take and a startlingly intense and informed exchange of ideas between two especially articulate and passionate panelists, Jim Felman of the Practitioner’s Advisory Group and Scott Hammond of the Antitrust Division of the DOJ.
Up-to-date post-Booker data from the USSC
As I had hoped, the USSC's hearing and meeting this week (background here) has led the US Sentencing Commission to update, and post on its Booker page, the USSC's latest collection of "post-Booker cases received, coded, and edited as part of the Commission's post-Booker project."
The Commission latest numbers, which are based on data extracted at close-of-business on April 5, 2005, are available at this link. (Kudos yet again to the USSC for continuing to disseminate this data "in real time.") Notably, this latest data run encompasses around 9,000 cases, and the USSC's memo provides basic case processing numbers broken down by primary offense categories and by circuit and district.
I hope to have some commentary on these latest numbers late tonight after I get a chance to review them in detail. In the meantime, readers are invited to share their insights on the meaning of this latest data.