April 23, 2005
A manual of Booker defense strategies
I just received from the Federal Defender Office of the Eastern District of Pennsylvania an impressive document entitled "Booker Litigation Strategies Manual: A Reference for Criminal Defense Attorneys." Recently updated, this document runs 75 pages and provides a collection of strategies and ideas drawn from federal defenders from around the country. This version, which is available for download below, includes bookmarks and hyperlinks to aid navigating around the document.
I am glad to receive and be able to share this valuable document, and I have been told that future updates will be posted at this Blakely/Booker page of the website maintained by the Office of Defender Services Training Branch (ODSTB) of the Administrative Office of the U.S. Courts. That page also has Fran Pratt's outline of post-Booker decisions and other helpful Booker materials.
April 23, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Indiana's brewing Blakely fix
Michael Ausbrook over at INCourts, who has developed into a leading commentator on state Blakely developments, has the latest details here on the legislative Blakely fix brewing in his home state. As Michael details, the pending legislation moves Indiana to advisory guidelines (i.e., the legislation Booker-izes rather than Blakely-izes the state's structured sentencing system). Here is the heart of Michael's account:
There is some very bad, i.e., confusing and possibly contradictory, drafting in some of the details. But the major thrust of the legislation is pretty clear. Out with fixed, presumptive sentences, and in with "advisory sentences," that are not even all that advisory. There is no statutory requirement that courts consider them....
In the new regime, however, trial judges "may voluntarily" consider the new advisory sentence, but they do not have to. And it would appear that trial courts will be able to impose maximum sentences for good reason, bad reason, or no reason at all.
Capital case chronicles
From around the blogsphere, here are some compelling accounts of compelling capital cases:
- From SCOTUSblog, Lyle Denniston here provides a thorough report on the plea entered by Zacarias Moussaoui to six conspiracy counts alleging he had a role in various terrorist plots and AG Gonzales's statement that the government would continue to seek the death penalty. TalkLeft has more on the story here.
- From The Connecticut Law Blog, Gideon here provides a thorough report on the ruling that Connecticut's death row volunteer Michael Ross, who is scheduled to be executed on May 11, is competent and can choose to forgo any appeals.
- From TalkLeft, here is a thorough report on the decision by the Virginia Supreme Court to uphold the death sentence of John Muhammad, one of the DC snipers.
April 22, 2005
The weekly wrap-up
HOUSE BILL AND USSC AND DOJ DEVELOPMENTS (see also links here)
- USSC speaks out against H.R. 1528
- Still more voices speaking out against brewing Booker fix
- More sentencing rhetoric and reality inside the Beltway
- When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?
- What's going on at DOJ?
- Final version of academic letter assailing brewing Booker fix
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Are the federal guidelines too tough on white-collar offenders?
- More news on the Enron Nigerian Barge sentencing
- More examples of tough post-Booker sentences
- Another (and different) view on the crack guidelines
- A punchy, though puzzling, perspective on parsimony
- More interesting district court Booker action
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Circuit insanity and Booker
- Circuits back to Booker business
- Interesting 8th Circuit discussion of forfeiture and sentencing issues
- Interesting Crosby remand from the Second Circuit
- On third thought from the Third Circuit
- Two for Tuesday from the 7th Circuit
- Two more of interest from the Seventh Circuit
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- Washington state's Blakely fix
- The Tennessee waltz regains its footing by grasping a pikestaff
- Interesting work from the Wisconsin Supreme Court
In good (elitist?) company
Thanks to Howard Bashman at How Appealing, I see that on-line here is a piece from Legal Affairs magazine by Lincoln Caplan which uses this blog/blawg as a jumping off point for making observations about blogs and blawgs. Also getting kind mention, along with How Appealing, are The Volokh Conspiracy and Underneath Their Robes.
If you do not know the difference between blogs and blawgs, you will have to read Lincoln Caplan's article. Based on the article's themes, I apparently risk betraying my caste were I to bother to explain the distinction. For, according to the article's concluding line: "while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs."
In all seriousness, thanks to Legal Affairs and Lincoln Caplan for the spotlight. However, I am now a bit worried that the article will reveal to Tom DeLay that Justice Kennedy is not the only SCOTUS member who does research on the internet.
Still more voices speaking out against brewing Booker fix
This afternoon I received copies of two more letters addressed to the House Judiciary Committee expressing opposition to the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here). These letters, both of which are available for download below, come (1) from the Chamber of Commerce and other industry groups, and (2) from 32 former U.S. Attorneys and DOJ officials.
Both of these letters spotlight problems with specific aspects of H.R. 1528 and more broadly echo the "go slow" sentiments expressed by so many in the wake of Booker. They also join the opposition to H.R. 1528 already expressed by Families Against Mandatory Minimums and Frank Bowman and Jim Felman and a large group of law professors and the US Sentencing Commission.
UPDATE: I have also now received, and make available for download below, a two page document expressing opposition to the Booker fix provisions from the ABA entitled "Position Paper of the American Bar Association Regarding Section 12 of HR 1528." Among its interesting features, this ABA document includes a section that directly responds to some of the potentially misleading rhetoric in the document reportedly developed by Representative Sensenbrenner's office about the Booker fix discussed in this post last week.
More sentencing rhetoric and reality inside the Beltway
This morning I received a copy of an interesting research paper that apparently is making the rounds in Washington to support the enactment of mandatory minimum penalties in the wake of Booker. I do not have all the details concerning the origins and use of this research paper, but the document, which is entitled simply "Mandatory Minimum Penalties" and principally promotes the mandatory minimum penalties appearing in the "The Gang Deterrence and Community Protection Act of 2005," is a fascinating read even without knowing its background. (FAMM's website here provides background on the gang bill and a different view of all of these issues.)
This document, which can be downloaded below, is full of rhetoric concerning the value and need for mandatory minimum penalties (quote from page 2: "Given the elimination of an effective determinate sentencing guideline system [in Booker], Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public."). The document also includes a section extolling the benefits of the death penalty (heading from page 16: "Research Shows That the Death Penalty Saves Lives.") .
Many claims in the document are arguably accurate, although the presentation is full of over-statement and is quite one-sided on all the issues covered. For example, the document asserts at pp. 8-11 that "Every defendant may obtain a reduced sentence" based on providing substantial assistance in the prosecution of others (emphasis in original) and claims that without "stiff mandatory minimum sentences ... offenders have no incentive to cooperate with authorities." But, of course, offenders without information about other offenders cannot get a departure based on substantial assistance no matter how much they cooperate, and federal offenders not subject to mandatory minimum sentences have lots of incentives to cooperate (see, e.g., Rowland and Fastow, as just two white-collar examples.) Similarly, a footnote in the discussion of the death penalty asserts that "specific data show[s] that the death penalty system, far from broken, is indeed working well," though there is no mention of innocent persons released from death row or the high reversal rate of death sentences.
I understand that an effort is underway to develop a "response" to this document in order to provide a more balanced view on these sentencing issues. (Of course, the US Sentencing Commission over a decade ago in its 1991 USSC report on mandatory sentencing effectively presented a more balanced view and documented some failings and harms of mandatory sentencing provisions ). Perhaps readers can use the comments to note aspects of this document that merit a more complete account of the reality that should accompany all the rhetoric.
April 22, 2005 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
Morning sentencing stories
Here are just a few of the many sentencing items in the morning papers:
- This article in the Houston Chronicle discussing yesterday's sentencings of two Enron Nigerian barge defendants (discussed here and here) suggests that, because the defendants received "far less than the government requested Thursday, [the result gave] white-collar criminal defense attorneys hope the sentences herald a better day for their clients."
- This article from North Dakota discusses the Eighth Circuit's decision yesterday in a major fraud case (discussed in this post).
- This commentary from Wisconsin about a federal sentencing has the compelling title of "Polite bandit gets a polite sentence."
- This article from Pennsylvania reports on a federal sentence in which the defendant received "more than three years in prison for selling mail-order videotapes of fighting pit bulls."
April 21, 2005
The enduring the importance of Almendarez-Torres
Thanks to fellow bloggers, I see some two interesting developments on the "prior convictions" front: (1) Michael Ausbrook over at INCourts has this insightful post which discusses an Indiana Supreme Court ruling on the application of the state's repeat sexual offender sentencing enhancement; and (2) Appellate Law & Practice reports here on the Fifth Circuit's mass rejection of appeals challenging sentencing enhancements based on prior convictions. Both items reinforce my sense that the Almendarez-Torres "prior conviction exception" is a terribly important aspect of the modern sentencing universe and that the Supreme Court ought to definitely resolve its status as soon as possible.
April 21, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack
More news on the Enron Nigerian Barge sentencing
From talking to a reporter this afternoon, I got the impression that former Merrill Lynch executive Daniel Bayly's below-guidelines sentence of 30-months imprisonment for his role in the Enron Nigerian barge fiasco (basics here) was the result of a four-level departure for "aberrent behavior" and that the District Judge Werlein's guideline calculations led him to reject a number of the findings made by the "sentencing jury" in the case (details here). The word is that Bayly plans to appeal his conviction; I wonder if the government might be inclined to appeal his sentence.
Meanwhile, this afternoon according to this Bloomberg News story, Judge Werlein gave a 46 month sentence James A. Brown. The longer sentence for Brown (the hardest working man in snow business?) can be explained, in part, because he was also found guilty of perjury and obstruction of justice. Nevertheless, compared to the 33-year sentence urged by the government, the sentence of less than 4 years for Brown again raises questions spotlighted here about whether we are seeing a pattern of leniency in white-collar cases post-Booker.
Peter Henning over at the White Collar Crime Prof Blog has a thoughtful discussion of these sentences and related issues in this post.
April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
USSC speaks out against H.R. 1528
Late yesterday I wondered in this post about when we would hear from the US Sentencing Commission concerning the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here). I am very pleased to see that just posted on the USSC's website, and available at this link, is an effective and forceful letter addressed to the House Judiciary Committee regarding H.R. 1528, dated April 19 and signed by all the USSC Commissioners.
This letter from the USSC speaks out against a number of the drug sentencing provision of H.R. 1528, and also assails the Booker fix provisions for its "hasty, piecemeal" response to post-Booker issues. Among other good insights, the USSC letter suggests it would be wise to have "additional hearings on the specific sentencing provisions of H.R. 1528 and the state of federal sentencing generally" before enacting any legislation in response to Booker. Kudos to the USSC for getting out in front of this issue.
April 21, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Interesting 8th Circuit discussion of forfeiture and sentencing issues
I cannot let a day go by without noting some notable circuit court ruling, and the Eighth Circuit has provided blog-worthy material with its decision today in US v. Huber, No. 03-2510 (8th Cir. Apr. 21, 2005) (available here). Huber concerns convictions for farm-program benefits and crop-insurance payment fraud, and much of the opinion is devoted to a discussion of an error in calculating the amount of a forfeiture order. But Huber concludes with an interesting sentencing discussion: the court remands for re-sentencing because the district court had departed downward based in part on the forfeiture calculations, and in so doing the court notes, but then artfully dodges, questions about proper guideline calculations. The Huber court also has this to say about plain error review in the Eighth Circuit:
Our plain-error analysis in Booker cases is currently under development in United States v. Pirani, No. 03-2871, and all cases raising issues of plain-error are awaiting an opinion in Pirani.
Interesting work from the Wisconsin Supreme Court
The Wisconsin Supreme Court, through a pair of decisions concerning the application of the state's truth-in-sentencing laws, has documented today that there are plenty of contentious sentencing issues that have nothing to do with Blakely. As detailed in this AP report, state Supreme Court today "on 4-3 votes in separate decisions rejected petitions by two inmates to have their sentences modified to reflect the less harsh penalties from the second truth-in-sentencing law that took effect in 2003." (Recall that last fall, as detailed in posts here and here and here and here, the Milwaukee Journal Sentinel ran a terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing.")
The specifics of the decisions in State v. Trujillo, No. 2003AP001463-CR (Wisc. Apr. 21, 2005) and State v. Tucker, No. 2003AP001276-CR (Wisc. Apr. 21, 2005) (both available for download here) will likely only be of great interest to Wisconsin lawyers. However, I found the following passage from Trujillo a suprisingly candid statement of a factor that likely impacts many high courts considering sentencing challenges:
We are also concerned about the possibility of opening the floodgates if we hold that the reduction in maximum sentences for TIS-II crimes constitutes a new factor. Between the time that TIS-I was enacted on December 31, 1999, and the date of TIS-II's implementation on February 1, 2003, more than 10,700 adults were admitted into Wisconsin's prison system with one or more TIS-I sentences. If we agree with Trujillo's new factor analysis, there is certainly the potential that most TIS-I offenders could seek a sentence modification on similar grounds.
Are the federal guidelines too tough on white-collar offenders?
UPDATE at 1:30pm: The Houston Chronicle reports in this article that this morning former Merrill Lynch executive Daniel Bayly received a sentence of 30-months imprisonment for his role in the Enron Nigerian barge fiasco. Here are some very interesting snippets from that article:
U.S. District Judge Ewing Werlein told Bayley he had never sentenced such a defendant with such a sterling reputation.... Werlein said he found the loss caused by Bayly's crimes to be $1.4 million. [N.B. This judicial loss determination is much less than the jury's loss determination in November].
During this morning's hearing, Werlein said Bayly deserved a less harsh sentence than the 4 to 5 years in prison sentencing guidelines would suggest. The judge said many letters submitted to the court in support of Bayly convinced him of Bayly's good character and reputation. He also said lighter sentences can deter white collar defendants more than other criminals.
In sentencing Bayly, Werlein said he considered the sentences the government has given in plea deals with other Enron defendants. The judge also characterized the barge fraud as relatively benign in the big Enron picture.
ANOTHER UPDATE: I have also posted, in a separate entry, More news on the Enron Nigerian Barge sentencing.-------
A few weeks ago, I queried in this post whether we are seeing a pattern of leniency in white collar cases post-Booker. Professor Weinstein in the comments and others suggested that such a pattern (if it exists) might reflect the fact that, under the federal guidelines, "sentences, keyed to illusory loss numbers, had grown too harsh."
Today sentencing is scheduled for the defendants in the Enron Nigerian barge case (which I discussed at length pre-Booker because the district judge had convened a sentencing jury, details here and here). This AP story provides background on the sentencing and notes that the PSRs in the case have recommended prison terms of 14 years for one defendant and 33 years for another.
Interestingly, as detailed in this Wall Street Journal article, the Chamber of Commerce has filed an amicus brief in this case to challenge the way losses are calculated under the guidelines. Here are a few excerpts from the WSJ article:
The Chamber's brief is an example, observers say, of a feeling within the business community that the government's crackdown on corporate behavior may have gone too far in the wake of the scandals at Enron and other big companies. With the passage of time, "perhaps the business community feels the climate is a bit better for them to push back" against some of those initiatives, says Robert Litt, a former senior Justice Department official and now a partner at the Washington law firm Arnold & Porter....
In the Nigerian barge case, the Chamber is attacking the Justice Department's method for calculating the financial damage of the fraud.... Under federal sentencing guidelines, which have long been used to determine prison sentences, an important factor in a fraud case is the size of the financial loss that investors suffered as a result of the deceit. A prison sentence can be altered by years, depending on the results of that calculation.
In the barge case, the math is trickier because questions about the transaction didn't surface publicly until after Enron had collapsed into bankruptcy court in December 2001 and its stock price had fallen to near zero. The government argues that the bogus profits produced by the 1999 barge transaction artificially inflated Enron's stock price at the time by at least $43.8 million and that this amount should be considered the loss to investors. In their court filings, the defendants argue that the calculated loss to Enron shareholders should be zero, based partly on the fact that the alleged barge fraud wasn't revealed until after the company's stock price had already crashed.
The Chamber of Commerce's brief supporting the defendants' position argues that the "artificial inflation" of a stock price shouldn't be used to determine loss. A "loss" comes only when disclosure of the alleged fraud causes a drop in the price of the company's stock, the brief says -- adding that the government embraced this definition in a civil securities case that was decided this week by the Supreme Court. In that opinion, the High Court agreed that investors need to show a link between the alleged fraud and a decline in the company's stock price to proceed with civil suits.
April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack
What's going on at DOJ?
I wondered in this post about when and how we will hear from the Justice Department concerning the Booker fix provisions of H.R. 1528 (basics here, commentary here and here and here). But now that I see this news that Deputy US Attorney General James Comey, the No. 2 person at the Department, has resigned, I am wondering more broadly about what is going on at DOJ.
Orin Kerr notes here that Comey "was highly respected among the career lawyers at DOJ" and calls his departure "a loss for the Department." And Comey's resignation comes on the heels of the recent transition of the head of DOJ's Criminal Division (from Chris Wray to Alice Fisher, as detailed here).
I am inclined to joke that all these developments are more fall-out from Blakely and Booker, though I am sure federal sentencing is only a small part of these stories. Nevertheless, it raises questions about who is developing DOJ sentencing policies at a time when a lot of strategic choices need to be made by the Department.
April 20, 2005
The Tennessee waltz regains its footing by grasping a pikestaff
As detailed here, last Friday the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme. However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely.
Today I received from David Raybin, who has been integrally involved in many Tennessee Blakely developments, the following e-mail about Gomez and subsequent developments:
The Tennessee Waltz Regains its Footing by Grasping a Pikestaff
Until last week everyone assumed the Tennessee presumptive sentencing scheme violated Blakely, so much so that the governor appointed a commission which recommended a Booker-like advisory sentence fix. Even the Attorney General agreed that the current law was flawed. To the astonishment of all, the Tennessee Supreme Court upheld the constitutionality of the Tennessee sentencing guidelines in State v. Gomez. The majority of the Supreme Court held that, notwithstanding a mandatory, presumptive sentence the discretionary enhancement factors somehow made the statute "advisory" and thus allegedly constitutional. To his credit the Attorney General filed an immediate petition to rehear saying "it is as plain as a pikestaff that a Tennessee judge has no authority to impose a sentence above the presumptive minimum -- the sentence authorized by the jury verdict alone -- unless an enhancement factor is found." The remainder of the petition [which can be downloaded below] attempts to convince the Court to reconsider the Sixth Amendment issue on now-familiar Blakely grounds.
I have been in contact with the defense attorneys who are also filing petitions to rehear but are adding arguments about the "plain error" issue because the Sixth Amendment issue was not raised at trial which occurred well before Blakely was decided. I am drafting an Amicus petition for on behalf of the defense bar on both Sixth Amendment and "plain error" issues.
The jurisprudence of this affair is astounding; everyone is scratching their heads as to how the Tennessee Supreme Court could have missed the mark by so much given that it was the virtually unanimous view of the Bench and Bar that our statute was clearly unconstitutional. Some lawyers scoffed that this ruling was an embarrassment the likes of which Tennessee had not seen since the Scopes monkey trial spectacle. I pointed out to these wags that the Tennessee Supreme Court had saved the day in Scopes' case by holding that the Tennessee constitution provided that only a jury can impose a fine of more than $50. Since the judge imposed the fine (of $100) the conviction was found to be void, Scopes was free, his case was never retried, and the honor of our State restored.
Gomez represents another sentencing question concerning the proper role of the jury and the judge. The petitions to rehear will give the Tennessee Supreme Court the opportunity to "get it right" this time. I am convinced they will reverse themselves given that the Attorney General stepped up again to point out the error of their ways which is as "plain as a pikestaff." A companion political issue concerns the still-pending legislative fix. The jury is still out on that one given that the Tennessee Supreme Court said the Tennessee law is not broken. The dance continues. David Raybin
UPDATE: Michael Ausbrook over at INCourts has this terrific post which develops a number of the story-lines which surround Gomez and Blakely developments in other states. Michael's post rightly lauds the Tennessee AG for its willingness to concede Blakely's applicability Tennessee's sentencing system, and it also spotlights the loose language from Justice Stevens' opinion for the Court in Booker that is sowing confusion about Blakely's reach.
When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?
It is now more than a full week since the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here) were the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security (coverage is linked here). I am wondering when and how we will hear from the US Sentencing Commission concerning this bill, as well as when and how we will hear from DOJ concerning the Booker fix provisions.
Given that H.R. 1528 included a number of mandatory minimum sentencing provisions even before the last-minute addition of the Booker fix provisions (Section 12), I was hoping that the USSC would vocally advocate against the bill on the basis of its long-standing opposition to mandatory sentencing provisions (see, e.g., this 1991 USSC report on the failures and harms of mandatories). Especially once the imbalanced Booker fix surfaced in H.R. 1528, which runs directly contrary to all the "go slow" advice the USSC received in its post-Booker hearings (highlights linked here), I was hoping the USSC would be quick to spotlight problems with the bill.
Of course, I understand it is hard for an official agency to weigh in on proposed legislation as fast as Frank Bowman or Jim Felman or a group of academics have. Still, the silence from the USSC will become deafening before too long. The word is that H.R. 1528 was not marked up in the House today, so the bill is not flying through the legislative process. Nevertheless, the dynamics which surrounded the development and passage of the Feeney Amendment should leave little doubt that time is always of the essence in these matters.
Relatedly, I remain curious about the views of the Justice Department concerning the Booker fix provisions of H.R. 1528. As detailed in this post, DOJ has generally endorsed the drug sentencing provisions of the bill, although it has expressed concerns about some of its harshest terms. But the Booker fix proposal is a much different animal. My instinct is that many line prosecutors would be troubled by the possible impact on plea negotiations that could flow from eliminating nearly all departure grounds (other than for assistance or fast-track), which is what the Booker fix provisions of H.R. 1528 now essentially proposes.
In addition to concerns that line prosecutors might have, I also think folks in Main Justice should be concerned about the questionable constitutionality of the Booker fix provisions of H.R. 1528. Because it is so unbalanced, I doubt DOJ would want the terms of H.R. 1528 to become the first test case for the vitality of Harris or the limits of Booker. Moreover, I assume DOJ is still overwhelmed with post-Booker litigation burdens, and new legislation of this sort would only multiply the number of issues to litigate. Finally, the extreme imbalance of H.R. 1528 suggests this is a moment for DOJ to really stand up and act like a Department of Justice and not just like a Department of Prosecutors.
April 20, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Two more of interest from the Seventh Circuit
I noted in this post late last night two interesting sentencing opinions issued by the Seventh Circuit on Tuesday. Today we get two more from that court which seem worth noting:
- US v. Skoczen, No. 03-1960 (7th Cir. Apr. 20, 2005) (available here), involves a Paladino remand; notable is the court's initial explanation that, "because the Guidelines do retain force even though they are no longer mandatory, ... errors in their application remain relevant. Even under an advisory regime, if a district court makes a mistake in calculations under the Guidelines, its judgment about a reasonable sentence would presumably be affected by that error and thus (putting aside the implications of plain error review) remand would be required just as before." Also, Skoczen concludes with some detailed, and somewhat confusing, dicta about the prior conviction exception.
- US v. Miller, No. 04-1989 (7th Cir. Apr. 20, 2005) (available here), involves another sentencing remand; it includes some interesting discussion of the the mitigating role adjustment and also some dicta on post-Booker application of the obstruction of justice enhancement. UPDATE: Peter Henning at White Collar Crime Prof Blog comments on the Miller decision in this post.
Still more bedtime sentencing reading
In prior posts here and here and here, I noted more than two dozen recent sentencing articles worthy of a place on the professional reading list (which, in my world, grows next to my nightstand). In case you are caught up (hah!), here are a few more intriguing sentencing pieces now appearing on SSRN:
- Further Reflection on the Guillotine by Professors Ronald J. Allen and Amy Shavell
- Feminist Engagement with Restorative Justice by Professors Kathleen Daly and Julie Stubbs Griffith
- The Revenge of Mullaney v. Wilbur: U.S. v. Booker and The Reassertion of Judicial Limits on Legislative Power to Define Crimes by Professor Ian Weinstein
In addition, I am very proud to report that the Spring 2005 issue of the Ohio State Journal of Criminal Law was sent to press earlier this month (and on time, like the Fall 2004 issue and all other OSJCL issues, thanks principally to the tireless efforts of my colleague and co-editor Joshua Dressler).
The Spring 2005 OSJCL issue includes a wonderful symposium on "Criminal Responsibility," which was guest edited by R.A. Duff, Professor of Philosophy at the University of Stirling, as well as a number of other interesting pieces. The following articles, which are linked here in full-text, may be of greatest interest to sentencing gurus:
- Excerpts from "The Future of American Sentencing: A National Roundtable on Blakely" by Professor Robert Weisberg
- Mend It or End It? The Revised ABA Capital Defense Representation Guidelines as an Opportunity to Reconsider the Death Penalty by Professor Eric M. Freedman
Interesting Crosby remand from the Second Circuit
With thanks to this comment for the tip, I see that the Second Circuit's remand yesterday in US v. Godding, No. 04-3643 (2d Cir. Apr. 19, 2005) (available here) perhaps merits additional attention. (Appellate Law & Practice noted this case yesterday here as did the Second Circuit Blog here, and today this article in the Hartford Courant provides a lot more background on the case).
What makes Godding notable is the Second Circuit's stated concerns about the justifications given by District Judge Dorsey for the below-guidelines sentence he imposed pre-Booker:
We are most troubled by the district court's mention of the bank's failure to detect and prevent the embezzlement. While the court expressly stated that it did not rely on this factor in sentencing, we note that consideration of such a factor and the conclusion that it, and not the defendant's volitional acts, rendered the sum embezzled in this case more significant than it otherwise would have been, would lead us to question the reasonableness of a non-guidelines sentence. Godding embezzled a significant sum and we do not think a district court could properly discount Godding's responsibility for the amount by referring to the bank's failure to check the crime. Furthermore, we are more broadly concerned that the brevity of the term of imprisonment imposed by this sentence does not reflect the magnitude of the theft of nearly $366,000 over a five-year period.
Section 3553(a) requires a court to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A) (2004). On any appeal taken following this remand, the sentence imposed by the district court below, or any new sentence imposed, will be reviewed, in accordance with United States v. Booker, for "reasonableness."