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April 30, 2005

Lots of interesting reports from the sentencing front lines

The newspapers are filled with a number of interesting reports of recent federal sentencings.  Here are links to intriguing stories of sentences apparently imposed within the guidelines from Montana involving embezzlement and from Texas involving bomb-making and involving child pornography.  Also in the papers are intriguing stories of sentences apparently imposed below the guidelines from Montana involving securities fraud and from Maine involving bank robbery (in a case with an elaborate legal history as detailed here).

Relatedly, this article details that, following the First Circuit's Booker remand for former Providence Mayor Vincent "Buddy" Cianci (which still seems a bit hinky to me as explained here), Cianci's lawyers are requesting a 29-month reduction in Buddy's sentence.   If Cianci gets a big break upon resentencing, I will again be wondering, as I did here, whether white-collar offenders as a class are doing particularly well in the post-Booker world.

April 30, 2005 in Booker and Fanfan Commentary, Booker in district courts | Permalink | Comments (3) | TrackBack

Helpful Booker analysis from the defender blogs

The federal defender blogs, which can all be accessed at this link, have a number of new posts with a range of important Booker insights:

April 30, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

A more perfect death penalty in Massachusetts?

The introduction by Massachusetts Governor Mitt Romney of a bill to bring capital punishment back to the state (first discussed here) may serve as an interesting test case for what arguments drive support and opposition to the death penalty.  An AP story here reports that "a day after unveiling a death penalty bill he says will make it virtually impossible to execute the innocent, Romney told reporters safeguards in the legislation are already swaying some lawmakers."  That article suggests that, at least for some legislators, concerns about mistakes and not basic moral opposition to state killing is key.  Meanwhile, this Boston Globe story spotlights the impact of both national and state politics on the development and fate of Romney's bill.

Gideon at the Connecticut Law Blog does a terrific job summarizing and analyzing key elements of Romney's proposal in this post.  But Gideon does not discuss what for me are the biggest practical issues: cost and relative efficacy.  New York has spent nearly $200 million on its death penalty system over the past decade without a single execution, and the Massachusetts system likely could expect to have a similar cost profile.  Though there is a robust debate over whether the death penalty saves lives, I have to think Massachusetts could have a much bigger impact on crime by putting $20 million each year into more police on the streets or investing in other social services. 

Consider also the fact that, according to statistics I found on the web, almost twice as many people are killed in Massachusetts by drunk drivers than by murderers, and the data on rape and other violent crimes suggest that Romney's bill may distract from more pressing criminal justice issues in Massachusetts.

UPDATE: Gideon has updated his post to review some of the capital cost issues and to provide interesting crime numbers in Connecticut (and I would also add that statistics show Connecticut, like Massachusetts, loses many more lives to drunk drivers than to murderers).  Gideon's expanded post provides great links to important discussions of the costs of the death penalty, most notably this recent testimony by the DPIC's Richard Dieter.  Now, if only Gideon or someone else might guestimate how much money has been spent in all the wrangling over the Michael Ross case.

April 30, 2005 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

April 29, 2005

8th Circuit decides Pirani plain error en banc

I just got the word that late today the Eighth Circuit released its long-awaited plain error decision in US v. Pirani, No. 03-2871 (8th Cir. Apr. 29, 2005) (available here).  I suppose I should be thankful it is only 36 pages, and I am thankful the 8th Circuit's website has this summary:

Applying Booker to a sentencing error which defendant failed to preserve in the district court, the court en banc follows the decisions of the First, Fourth, Fifth, and Eleventh Circuits in holding that a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice under controlling Supreme Court precedents, that is, a "reasonable probability" that the district court would have imposed a more favorable sentence under the advisory guidelines regime mandated under Booker; as defendant failed to meet that burden, his sentence is affirmed; challenges to cross-examination of defense witness rejected; district court did not abuse its discretion in admitting a tape-recording. Judge Heaney, dissenting. Judge Morris S. Arnold, with whom Judge Smith joins, dissenting. Judge Bye, concurring in part and dissenting in part. [PUBLISHED] [Opinion of the Court En Banc. Loken, Chief Judge, Author]

April 29, 2005 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

A reasonable(?) approach by the Fourth Circuit

An intriguing decision by the Fourth Circuit today in US v. Bartram, No. 99-4566 (4th Cir. Apr. 29, 2005) (available here) provides yet another Booker pipeline issue to think about.  Or, put another way, Bartram demonstrates again the opaqueness of Justice Breyer's final paragraph in the Booker remedial opinion (as I complained in this post as soon as I read the "pipeline paragraph").

In Bartram, the Fourth Circuit decides the defendant could not make out a Sixth Amendment violation because he (indirectly) admitted to the sentencing judge's drug quantity findings.  For Judge Niemeyer, who wrote a separate opinion concurring in Bartram, this means that under the Fourth Circuit's plain error approach in White, the defendant would have to establish prejudice (which he can't) to obtain a resentencing.  But Judge Widener, who is technically writing for the court, takes a different route by drawing upon Justice Breyer's final sentencing in the "pipeline paragraph."  According to Judge Widener, "it is sufficient 'to review [the] sentence for unreasonableness' [and we] conclude the sentencing decision of the district court in this case [is]reasonable." Interestingly, Judge Gregory wrote separately just to note he only concurs in the judgment.

In the course of his opinion for the Court, Judge Widener has some extended dicta about reasonableness review (although his use of the pronoun "I" leads me to conclude he is writing on his own behalf only).  Here some of the reasonable dicta:

I think the [Supreme] Court required the courts of appeals to review the actions taken by the district courts in sentencing to be reviewed under the standards of the system outlined in Booker and, if its acts were reasonable, to affirm the sentence of the district court.  I would define reasonable under ordinary English usage as: being in agreement with right thinking or right judgment.  Webster's Dictionary, 3rd, p.1892.

But, then again, the first phrase of Judge Niemeyer's concurrence states: "I am pleased to concur in most of what Judge Widener has written"; perhaps, then, this dicta is for the Court.  Just one more post-Booker head scratcher.

Have a reasonable weekend.

April 29, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

8th Circuit approves broad sex offender exclusion statute

Mike at Crime & Federalism is already blogging up a storm about the Eighth Circuit's decision today in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upheld against numerous constitutional challenges Iowa's legislation which "prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility."  This AP report about the case and Mike's first two powerful posts here and here provide plenty of food for thought even before I have had a chance to read the full opinion.

This weekend, after I get a chance to read the 8th Circuit opinion, I hope to do a post on what seems to be an ever-growing "sex offender panic."   In the meantime, I have linked below some notable prior posts about sex offender sentencing:

April 29, 2005 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Pleas, pleas Mr. Posner

I hope on a Friday afternoon I will be forgiven for a post title that makes a weak stab at invoking this great song.  But two circuit opinions today address interesting claims that flow from federal plea dynamics (which, though ticking down in the latest 2003 USSC statistics, still account for over 95% of federal convictions).

From the Seventh Circuit, Judge Posner gives us US v. Cook, No. 04-1923 (7th Cir. Apr. 29, 2005) (available here) which discusses plea issues in a distinctive, "casual friday" kind of way (and includes a strange analogy to ordering a hamburger which, I am inclined to speculate, perhaps resulted from the defendant's surname making Judge Posner hungry).  Among other aspects of the amusing decision, Judge Posner indicates the defendant raised one of those "ubiquitous" Booker claims.

On a somewhat more serious note, I see from Appellate Law & Practice here that the Fifth Circuit today in US v. Munoz, No. 04-40481 (5th Cir. Apr. 29, 2005) (available here) concluded that the government breached its plea agreement by supporting an enhancement recommended in a presentence report; the Fifth Circuit remanded for resentencing before a different judge.

April 29, 2005 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Dynamic death penalty debates

I am back at my office desk, and though I am still thinking about ideas developed during this terrific Illinois Booker Roundtable (some of which I may get a chance to share shortly as a participant in this teleseminar with Judge Cassell and Professor Kerr), I see that there are a number of dynamic death penalty debates on-going in various fora.

In Massachusetts, as this New York Times article details, "Governor Mitt Romney introduced a bill on Thursday that would bring back capital punishment to Massachusetts, and would do so by creating a death penalty that he said was virtually foolproof."  This bill is based on the interesting report produced by a death penalty commission that Romney created and charged with devising a  "foolproof" death penalty system for Massachusetts.  (That report, which was the basis for my very first blog post, can be accessed here.)

In Iowa, as detailed in this article, the state Senate has been debating reinstating the death penalty as part of a sex offender sentencing bill, which was developed in response to the abduction and slaying of a 10–year–old Cedar Rapids girl.  And just as the state death penalty proposal stalled, Iowa Senator Charles Grassley, as detailed in this article, introduced federal legislation that would make the death penalty applicable in the federal conviction of sex offenders who kill children.

These state debates have prompted a blogger debate about the death penalty involving Tung Yin and Christine Hurt.  The blogsphere is also keeping up with the latest Connecticut developments concerning death penalty volunteer Michael Ross: Gideon provides the latest news and Norm Pattis provides very sharp commentary.

Finally, I was intrigued to see, from Nevada, this very article detailing that the "state Senate voted 15-6 Thursday to give final legislative approval to a measure bringing Nevada into line with a U.S. Supreme Court ruling that abolished the death penalty for killers who commit capital crimes as minors."  It is interesting to think about whether this vote, which seems mostly symbolic in the wake of Roper, might be viewed as bolstering the Court's arguably shaky claims in Roper about a national consensus against executing juveniles.

April 29, 2005 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

USSC FY 2003 data now available!

Because I am spent from participating in this terrific Illinois Booker Roundtable, and also because I need to get some rest in order to be an effective participant in this Friday teleseminar with Judge Cassell and Professor Kerr, I sadly won't be able to spend all night mining the US Sentencing Commission's 2003 Sourcebook of Federal Sentencing Statistics, which just appeared on-line at the USSC's website.  But I am very excited to have a huge data set (from the days when guidelines were mandatory) to keep me busy until we get the next USSC release of post-Booker data.

As the USSC explains here, the 2003 Sourcebook of Federal Sentencing Statistics presents descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data regarding "cases sentenced both before and after enactment of the PROTECT Act, Pub. L. 108-21. Seven months of the fiscal year were prior to the effective date of the Act (October 1, 2002–April 30, 2003), and five months were after (May 1, 2003–September 30, 2003)."

I hope readers might use the comments to spotlight statistics from the 2003 Sourcebook that seem particularly noteworthy.  I was struck by the fact that over 70,000 cases moved through the system, and I thought the following figures provide a fascinating snapshot of multiple years of basic data:

April 29, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Lil' help for Lil' Kim

I found amusing this story reporting that "Rapper Lil' Kim has issued a set of guidelines to fans writing letters of support ahead of her sentencing for lying to a grand jury, noting many already submitted are more likely to appall rather than persuade the judge."  As the article details, instructions posted on Lil' Kim's fan website ask her fans "to be respectful of [SDNY US District] Judge Gerard Lynch and the criminal justice system, [and they] ask fans to refrain from drawing comparisons to Martha Stewart."  I also noticed that the fan website suggested that supporters "try to write in a proper format (no symbols, abbreviations, all caps lock)."  DAT'S GR8 ADVICE 4 BLOGGERS 2. ;-)

April 29, 2005 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

April 28, 2005

SCOTUS GVR in an appeal waiver case

Following up my post yesterday concerning appeal waivers in the wake of Booker, a lawyer e-mailed me the following note:

SCOTUS' most recent order list included a GVR on a Booker/appeal waiver case (Morris v. U.S., 04-9299) in which the cert petition (available for download below) argued in part that enforcing appeal waivers against Booker claims would effect a miscarriage of justice.  Being in the Third Circuit, I expect there will be a prompt remand for resentencing.  SCOTUS could easily have denied cert if it thought the appeal waiver issue to be a clear one.

Though I don't think one can draw a principle of law from a Supreme Court GVR, this news is still interesting (and the petition is a worthwhile read).

Download appeal_waiver_cert_pet.pdf

April 28, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Third Circuit clarifies(?) its unique approach to Booker pipeline cases

I am connected after a terrific day participating this afternoon in this terrific Illinois Booker Roundtable. I learned so much from the judges and others involved in the event, but my Illinois reflections may have to wait until the weekend because I must first catch up on the day's sentencing news. Let me begin with a report on the Third Circuit's en banc ruling today in US v. Davis, No. 02-4521 (3d Cir. Apr. 28, 2005) (available here). In Davis, the Third Circuit finally explains (sort of) its distinctive approach to Booker pipeline cases.

Recall that the Third Circuit, without detailing its exact approach to plain error issues, has been remanding seemingly every case for resentencing with this standardized explanation: "In light of the determination of the judges of this court that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." See, e.g., today's ruling in US v. Bruce, No. 02-3316 (3d Cir. Apr. 28, 2005) (available here).  In Davis, the Third Circuit talks about a number of Booker pipeline issues and seems to indicate that it is following the Sixth Circuit's Barnett "presumed prejudice" approach to plain error claims.

Based on a quick read, I am not entirely sure the Third Circuit in Davis effectively or completely justifies what has seemed like a "remand them all" approach to sentencing appeals raising Booker claims.  But, these closing paragraphs in Davis suggest the Circuit believes that interests of fairness and uniformity are being served by its practices:

Booker applies to all cases pending on direct review.  By remanding, we ensure that each defendant to whom Booker applies is sentenced accordingly.  This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, "correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]" on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

In this opinion, we express no view on waiver or alternative sentences. We will continue to review each appeal individually.  Appellants have been directed to state whether they wish to challenge their sentence under Booker. For those who do not, we consider the appeal on its merits.  Where an appellant raises a Booker claim and establishes plain error, however, we will decide claims of error related to the conviction, vacate the sentence, and remand for consideration of the appropriate sentence by the District Court in the first instance.

April 28, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Big Ten Booker tour continues

I will likely be off-line throughout the day as I travel to the University of Illinois College of Law to participate in this terrific "roundtable" organized by Professor Margareth Etienne entitled "The Impact of Booker: A Dialogue Between Scholars and Practitioners."  (This trip rounds out my Big Ten Booker month after my sojourn to Minnesota Law School a few weeks ago; discussed here and here.)  The participants and plans for the Illinois roundtable have me very excited, and I hope late tonight to report on what I learn in Champaign.

In the meantime, as is my practice, I have assembled below links of major posts from what has already been a pretty busy week:






April 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Blakely and Booker analyses around the blogsphere

A number of blogs have recent posts with detailed analyses of Booker and Blakely developments:

April 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

More on creative sentence for football fan

As first discussed here, a Wisconsin state judge recently gave a theft offender the choice of "spending 90 days in jail or donating her family's prized Packer tickets to the Make-a-Wish Foundation for one year."  Following up this story, which is apparently making national news, this well-done article quotes a number of experts concerning the legality and appropriateness of this unusual sentence (which the defendant apparently has no plans to challenge).  The article also lists a number of other unusual sentences imposed in recent years and provides this poll where you can vote on whether you would give up the tickets or spend 90 days in jail.

April 28, 2005 in Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

April 27, 2005

High profile 2d Circuit Crosby remand

Though I do not see the decision on-line, the papers are reporting here that the Second Circuit yesterday entered a Crosby remand so that District Court Judge Janet Bond Arterton can consider resentencing former Bridgeport Mayor Joseph Ganim, who is serving nine years in prison for corruption.  According to the AP report:

Ganim's attorneys would not say Wednesday exactly what sentence they will request, but have said in the past that Ganim's sentence should be reduced from nine years to three. Prosecutors declined to comment, other than to say their request for a review was standard practice in the wake of [Booker].... Prosecutors asked the 2nd Circuit Court of Appeals in February to send Ganim's case back to Arterton.

UPDATE: Additional coverage of Ganim's case can be found here.

April 27, 2005 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Appeal waivers in the wake of Booker

Thanks to Appellate Law & Practice I see here that the Second Circuit today, in addition to its notable Fagans ruling (discussed here), issued a brief opinion on appeal waivers in US v. Morgan, No. 03-1316 (2d Cir. Apr. 27, 2005) (available here).  Morgan, in both outcome and approach, is similar to the Seventh Circuit's recent discussion of appeal waivers (per Judge Posner) in Bownes (available here).  Both decisions essentially say that defendants received benefits with the pre-Booker plea bargain that induced the waiver of appeal rights, and the legal change ushered in by Booker does not provide a legitimate basis for a defendant to now upset that bargain.

A number of weeks ago, I discussed at length in this post the law, policy and practice of appeal waivers in the wake of Booker.  Seeing the approach taken in Morgan and Bownes has me concerned that circuit courts are examining appeal waivers only from a defendant perspective and not from a system-wide perspective.  As explained in my prior post, whatever one thinks of claims that defendants should or should not be held to pre-Booker deals with appeal waivers, there is a separate argument, based in congressional-intent concepts and drawing on Justice Breyer's remedial work in Booker, that it is against public policy to let prosecutors and defendants completely opt-out of appellate review because Congress strongly favors the "retention of sentencing appeals ... to iron out sentencing difference," Booker, Breyer slip op. at 21.

As I suggested in my prior post, even if this public policy argument does not call for declaring appeal waivers unenforceable post-Booker, I think it does suggest that circuit courts should now at least review all appealed sentences for reasonableness (as the Eighth Circuit did in Killgo; details here).  And, again because of Justice Breyer's strong advocacy of congressional interest in appellate review, this public policy argument perhaps also suggests that district courts post-Booker should reconsider the appropriateness of accepting pleas with broad appeal waivers.

April 27, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

The 2d Circuit addresses more pipeline issues and the scope of the prior conviction exception

Today in US v. Fagans, No. 04-4845 (2d Cir. Apr. 27, 2005) (available here), Judge Jon Newman writing for the Second Circuit addressed a number of Booker "pipeline" issues that were not resolved in his Crosby plain error opinion for the Court.  Specifically, Fagans addresses:

(1) whether to remand for resentencing, rather than for consideration of whether to resentence, where an objection to the compulsory use of the Sentencing Guidelines has been preserved for review, (2) whether, in some circumstances, to review the correctness of a Guidelines calculation now that the compulsory nature of the Guidelines has been eliminated, and (3) whether the calculation was correct in this case.

And, the Fagans Court holds that "the Guidelines calculation should now be reviewed, that the calculation was correct, and that the case should be remanded for resentencing because the District Court understandably but erroneously applied the Guidelines in a compulsory manner and the Defendant preserved his objection to that error."

There are a number of interesting aspects of Fagans, and I was particularly intrigued by this statement about the scope of the "prior conviction" exception: "While the exact scope of the phrase 'fact of a prior' conviction has yet to be determined, see Shepard v. United States, 125 S. Ct. 1254, 1262 (2005), the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception."  This assertion about the scope of the prior conviction exception seems notable for various reasons:

1.  A number of criminal history enhancements in federal and state sentencing law turn not on the bare fact of a prior conviction, but rather on the "type and length of a sentence imposed" (e.g., federal criminal history calculations under the guidelines turn on the length of prior sentences; an Ohio enhancement asks whether the defendant previously served a prison term).  Expanding the scope of the purportedly "narrow" prior conviction exception in this way is not of minor significance.

2.  I suspect there are often some serious factual disputes over the "type and length of a sentence imposed" for a prior offense.  In cases with a conflicting factual record, allowing a judge to resolve any factual disputes (by a preponderance of the evidence?) is not of minor significance.

3.  Though I am not sure exactly why allowing a judge to make findings about the "type and length of a sentence imposed seems logically to fall within" the prior conviction exception, I am sure that the offense/offender distinction advanced in my article "Conceptualizing Blakely," 17 Fed. Sent. Rep. 89 (Dec. 2004) (available here) supports this (logical?) extension of the prior conviction exception.

April 27, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

In praise of the District of Maine

Through my work on this blog, I have come to especially appreciate judges who write thoughtful sentencing opinions and court websites which make those opinions easily available on-line.  (It is has been interesting to discover the diversity — dare I say disparity? — in these areas throughout the federal system.)

Though I have not done a comprehensive examination of district court websites, I am moved today to give a special shout out to the District of Maine.  Its website, in addition to being  informative, attractive, and easy-to-navigate, makes available an enormous number of the court's opinions going back many years.  And, the district's three active judges — Chief Judge George Singal, Judge D. Brock Hornby and Judge John Woodcock (bios here) — all seem to make a habit of writing thoughtful sentencing opinions.  Consider, as just some examples from the last few weeks, these efforts:

All of these decision thoughtfully address a number of important post-Booker issues.  Perhaps the one must-read is Marinaro, which covers a broad array of post-Booker matters in an extended opinion with this opening line: "Gerardo Marinaro, an Italian citizen, is a genuinely likeable, hard working family man, who has an unfortunate knack for occasionally making notably bad decisions."

UPDATE: I am very pleased to see that Mike at Crime & Federalism has picked up this theme with this post praising the Eighth Circuit's website.  Mike makes a number of good points on which we agree; I particularly like that the circuit's opinion page has summaries of the day's decisions, where today you will see a notable sentencing rulings in US v. Brown, No. 04-2960 and US v. Garcia, No. 04-3016 .

April 27, 2005 in Booker in district courts | Permalink | Comments (1) | TrackBack

AEDPA ruling from SCOTUS today

Because I am not a habeas or AEDPA guru, I am not sure of the broad significance of the Supreme Court's 5-4 ruling today in Pace v. DiGuglielmo, which held, in the words of Lyle Denniston here at SCOTUSblog, that a "post-conviction claim filed in state court, found by a state court to be out of time, does not stop the running of the time for filing a federal habeas petition under AEDPA."  I am inclined to speculate that this ruling (which was authored by the Chief Justice and divided the Court along its "traditional" conservative/liberal lines) could possibly impact when and how some state defendants can bring Blakely claims or other challenges to state sentencing practices in federal court. 

I hope commentors might explain whether Pace is consequential, though I will quote from Justice Stevens' dissent (with citations omitted) which sets out his view of the case's impact:

[T]he most likely consequence of the Court's new rule will be to increase, not reduce, delays in the federal system. The inevitable result of today's decision will be a flood of protective filings in the federal district courts.... The Court admits that this type of protective filing will result from its holding. I fail to see any merit in a rule that knowingly and unnecessarily adds to the burdens on the district courts in a way that simple tolling would not.

April 27, 2005 in Sentences Reconsidered | Permalink | Comments (2) | TrackBack