May 7, 2005
An international view on increased post-Booker sentences
A few months ago, as detailed in this post, I received a thoughtful e-mail from a self-described "retired Australian lawyer/law professor" suggesting that international law ought to play a role in the post-Booker world. As noted in that prior post, this foreign correspondent suggested international law precluded sentencing judges from imposing an increased sentence post-Booker based on pre-Booker conduct.
Today I heard again from my Aussie pen-pal, who was moved to write by Judge Posner's decision this week in Goldberg (discussed at length here) which seems to condone the possibility of increasing sentences after a Booker remand. In an interesting and brief note, which can be downloaded below, he explain his "view that international law, as applied by federal courts, should prevent a federal court imposing a more severe sentence than a defendant would have received had the Guidelines remained mandatory." The note concludes by expressing hope that one of Posner's "former colleagues at U of Chicago Law School [will] lend him an international law text and prompt him to re-think and re-write what he has written before judges lower down the system take him at his word."
The week that was
It's time again for a weekly wrap-up. You know the drill:
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Judge Presnell assails DOJ (and pulls no punches)
- Can a post-Booker resentencing lead to a sentence increase?
- Reconsidering and resentencing
- Where the real Booker action can be found
- The more things change...
- Another high-profile Connecticut Booker variance
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- A musical summary of Booker appeals
- Same as it ever was...
- Judge Easterbrook spotlights fact/law distinction in prior conviction exception
- Third Circuit enforces appeal waiver post-Booker
- Further reflections on burdens of proof and acquitted conduct
- A dissent from circuit business as usual post-Booker
- 11th Circuit says juvenile offenses come within prior conviction exception
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Florida Supreme Court declares Apprendi is not to apply retroactively
- Two Oregon cases spotlight key Blakely issues
- Dancing around Gomez in New Jersey and Tennessee
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- The weekly SCOTUS GVR report
- The waiting is the hardest part...
- Revised draft of Pondering Modern Sentencing Process
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Fantastic reading around the blogsphere
- Constitutional challenge to AEDPA standards?
- Capital punishment in theory and practice
- Intriguing (high-profile) example of jury sentencing
- More perspectives on Massachusetts death penalty bill
May 6, 2005
Judge Easterbrook spotlights fact/law distinction in prior conviction exception
Today in US v Carpenter, No. 04-2270 (7th Cir. May 6, 2005) (available here), Judge Easterbrook, speaking for the Seventh Circuit, provides an astute account of why the "prior conviction" exception might extend to matters beyond the "bare fact of a prior conviction" (which is how the exception has been limited in Oregon):
Criminal history is all about prior convictions; its ascertainment therefore is an issue of law excluded by Booker's own formulation and governed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). Neither judges nor juries pass on the wisdom of legal rules case by case, and Booker (like its predecessor Apprendi v. New Jersey, 530 U.S. 466 (2000)), is about who finds facts rather than what legal consequences those facts may have. See McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005). That is why we held in United States v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005), slip op. 6-7, that Booker does not affect the process of deciding whether a prior offense is a crime of violence.
As the Court explained in Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), a sentencing court is entitled to classify and take into account the nature of a defendant's prior convictions, provided that the judge does not engage in factfinding about what the accused did (as opposed to what crime he has been convicted of). Carpenter does not contend that the judge went behind the existence of his priors to engage in a factual rather than a legal analysis of his former criminal behavior. (Part III of Shepard, which we have cited here, was joined by only four Justices, but another three Justices concluded that recidivist enhancements never create problems under the sixth amendment, so Part III speaks for the Court as a practical matter.)
I view Judge Easterbrook's discussion as astute because, as I explained in the latter part of my Conceptualizing Blakely article, "the Blakely ruling's emphasis on 'fact' finding — and [because] questions of fact are traditionally considered the province of a jury, while questions of law are traditionally for judicial determination — one might [identify] a fact/law distinction at heart of the Blakely principle." As explained in that article, "historically there has been precious little development or even consideration of the distinction between questions of fact and questions of law at sentencing," but I think such a distinction can and should become much more significant and much more fully developed in the wake of Blakely.
Reconsidering and resentencing
I noted in this post discussing Judge Posner's curious comments in Goldberg that there are many uncertainties in the post-Booker world about what exactly can and should happen during a post-Booker resentencing following a circuit remand. And today I see a decision from a district court, US v. Gabriel, No. 02-216 (D.D.C. May 4, 2005) (available here) which confirms this reality.
Gabriel has a long appellate history — the case is one of the 688 cases that the Supreme Court has GVRed on Booker grounds — and the specifics are too intricate to summarize. But the decision effectively spotlights that the "law of resentencing" was complicated and contested even before Booker. And now Booker pipeline cases have taken these issues to a whole new level.
Two Oregon cases spotlight key Blakely issues
This morning I noticed on-line two Oregon state intermediate appellate court cases which spotlight some of the big Blakely questions that will need to be resolved by the Supreme Court sooner rather than later.
In State v. McMillan, 2005 Ore. App. LEXIS 538 (Ore App. Ct. May 4, 2005), the defendant raised Blakely to contest the sentencing judge's fact-finding which set the amount of a restitution order. The McMillan court rejected this claim, asserting simply:
The statutory maximum is...the amount of pecuniary damages as determined by the court, and no more. Therefore, even assuming that Apprendi and Blakely apply to restitution, see State v. Gutierrez, 197 Or.App. 496, 505, 106 P3d 670 (2005) (Apprendi and Blakely "arguably do not apply" to restitution), the principles announced in those cases were not violated.
In State v. Giles, 2005 Ore. App. LEXIS 542 (Ore App. Ct. May 4, 2005), the defendant contested on Blakely grounds a sentence enhancement based on the trial court's finding of "persistent involvement in similar offenses." Here the defendant prevailed, because:
In State v. Perez, 196 Or.App. 364, 371-73, 102 P3d 705 (2004), rev den (Apr 28, 2005), we held that, under Apprendi and Blakely, any fact other than the "bare fact of a prior conviction" that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
May 6, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (0) | TrackBack
May 5, 2005
Judge Presnell assails DOJ (and pulls no punches)
I noted earlier today in this post that the real Booker action is to be found in the district courts, and this afternoon US District Judge Gregory Presnell brought the action straight to the Justice Department with his decision in US v. Williams, No. 04-cr-0111 (M.D. Fla. May 5, 2005). Williams, which can be downloaded below, is a seven-page frontal assault on modern federal prosecutorial policies. Williams must be read in its entirety, as every page is loaded with potent quotables. Here is just a small taste:
[T]he government argued that any sentence, other than a guideline sentence, would be unreasonable (and thus illegal). This contention is consistent with the policy of the Department of Justice to oppose as unreasonable any sentence that falls below the applicable guideline sentencing range, save those the Department authorizes in its sole discretion....
The government's policy, however, is at odds with Booker. In essence, the Department of Justice continues to treat the guidelines as mandatory, by asserting that the Court has no discretion to deviate therefrom. Thus, while paying lip service to Booker and the statute, the government flouts the efficacy of the Supreme Court's opinion.
One of the factors that the Court is instructed to consider in fashioning a reasonable sentence is to "promote respect for the law." 18 U.S.C. § 3553 (a)(2)(A). Yet, the government itself shows no respect for the rule of law when it consistently advocates a policy which ignores a specific pronouncement of our nation's highest court....
Criminal behavior can fuel public outcry and drive broad legislative and executive agendas to get "tough on crime." But how does that translate to specific instances? If you take a matrix to factor offense severity, overlay it with mandates born of popular outrage, and tailor it purportedly to address almost every eventuality, you get "justice" dictated in advance, marked by visceral condemnation, and based on the pretense of omniscience.
Under Booker, the sentencing guidelines no longer stand as such a mandatory ideal. In a very real sense, however, the executive branch is continuing to campaign for such a supposedly scientific equation of justice, without mentioning the wholly unscientific and overwhelming discretion it exercises over the sums that equation produces. In that regard, the executive wants to be prosecutor and judge. And, in a display of its wisdom and qualifications for that lofty job, the executive arbitrarily claims that any sum lesser than what it contrives is unreasonable and contrary to law.
Wowsa! And I have left out some of the really good stuff in Williams. Adding intrigue to insult, Judge Presnell in the course of considering this case requested that the local US Attorney make available the information DOJ iss collecting on post-Booker sentencings. That request, and its rejection by DOJ, are attached as appendices to the Williams opinion (and are also available for downloading below).
Regulars readers know that this Williams decision is not the first time Judge Presnell has sought to speak his truth to power in a sentencing decision. Judge Presnell has long had a place in my Sentencing Hall of Fame, and linked below are some of his greatest hits:
- Judge Presnell speaks on 5K after Booker
- Judge Presnell speaks again!
- Huge news from the Sunshine State
May 5, 2005 in Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack
Fantastic reading around the blogsphere
Evenings like tonight, when I see a remarkable number of remarkable posts on remarkable sentencing developments, I wonder how we ever lived without the blogsphere. Here are some must-reads:
- At SCOTUSblog, Lyle Denniston in this post provides wonderful background on the major AEDPA case in the Ninth Circuit that How Appealing first flagged here and that I discuss here. Mike at Crime & Federalism adds his thoughts on the case here. (Back at SCOTUSblog, Lyle also has this terrific post about the coming sentencing of Zacarias Moussaoui.)
- At the Second Circuit Blog, Yuanchung Lee in this post further analyzes the Second Circuit's recent Gonzales decision, which I discussed at length here. He concludes that the "most logical reading of this case, then, is that while the district court has the 'authority' to use the preponderance standard to resolve sentencing disputes, it also has the authority to use the higher, beyond a reasonable doubt standard."
- At TalkLeft, TChris in this post assails the drug sentencing provisions of HR 1528, and also links to this LA Times editorial which astutely recognizes that the "cynically titled Safe Access to Drug Treatment and Child Protection Act of 2005 does little to push drug treatment but could do much to harm children."
- At Crime & Federalism, Norm Pattis has this potent post on the Michael Ross case and this potent post on the bill in to bring back the death penalty in Massachusetts.
Can a post-Booker resentencing lead to a sentence increase?
One of the many uncertainties in the post-Booker world is exactly what can and should happen during a post-Booker resentencing following a circuit remand. Should prior (proper) guideline calculations be taken as given so that the chief question becomes whether the sentencing judge will now vary, or should the whole sentencing process start from scratch? And, perhaps most important for defendants, can a district judge based on 3553(a) factors impose a sentence greater than initially imposed under the guidelines?
Judge Posner speaking for the Seventh Circuit has a lot to say on these issues today in US v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) (available here). The defendant in Goldberg challenges the district court's application of a vulnerable victim enhancement, which provides Judge Posner an opportunity to discuss the different features of a Paladino remand for reconsideration as opposed to a remand for full resentencing. Here is a portion of what seems like a lot of important post-Booker dicta:
Goldberg is entitled to a limited Paladino remand because the judge based the enhancement on his own findings. It is worth pointing out, however, that Goldberg may be better off with that relief than with his preferred relief, which is an order resentencing him. Any resentencing would be conducted under the new, post-Booker regime, in which the guidelines are merely advisory, and so he'd be exposed to the risk of a higher sentence.... The judge might then decide that 52 months was too light a punishment for Goldberg's crime. Although the sentence was at the midpoint of the guideline range, the range is now merely advisory. Judge Shadur made clear that he was disturbed by the magnitude of Goldberg's fraud and moved by the letters from which we quoted. He might want to give Goldberg a longer sentence, and if the departure were a reasonable one we would have to affirm.
We were surprised to learn that Goldberg's lawyer and — we understand from him, and from the argument of another criminal defense lawyer in an appeal argued before us the same day — other members of the defense bar as well believe that a sentence meted out in the pre-Booker era of mandatory guidelines is the ceiling in the event of a resentencing unless there are changed factual circumstances, such as additional criminal conduct by the defendant. If there are no such changed circumstances, Goldberg's lawyer told us, the inference would arise that any heavier sentence imposed on remand was vindictively motivated and therefore improper. That is a misunderstanding, and it is a misunderstanding dangerous to criminal defendants. When there is no relevant legal or factual change between sentence and resentence, the motive for an increase in punishment is indeed suspect. But Booker brought about a fundamental change in the sentencing regime. The guidelines, mandatory when Goldberg was sentenced, are now advisory. Were he to be resentenced, it would be under a different standard, one that would entitle the judge to raise or lower the sentence, provided the new sentence was justifiable under the standard of reasonableness. No inference of vindictiveness would arise from the exercise of the judge's new authority.
The risk that the judge might increase the sentence is not significant in a Paladino remand. Such a remand asks the judge whether he would have given the defendant a shorter sentence had he realized the guidelines are merely advisory. If so, this would show that his treating the guidelines as mandatory had been a plain error, and so we would vacate for resentencing. Since our basis for doing this would be the judge’s having told us that he wanted to shorten the defendant's sentence, it would be an unusual case, to say the least, in which the judge would impose a heavier rather than a lighter sentence; presumably it would be a case in which damaging new information had come to light since the Paladino remand.
Tedder in contrast was a case in which we ordered the defendant resentenced because the judge had misapplied the guidelines, in which event he can impose a higher sentence because the guidelines are merely advisory. And this demonstrates that a defendant who appeals a pre-Booker sentence on the basis that the guidelines were misapplied (as in Goldberg's challenge to the vulnerable-victim enhancement) is playing with fire, because if he wins and is resentenced the judge will have more sentencing latitude, up as well as down, than he did when the guidelines were deemed mandatory.
Though I have no significant squabble with Judge Posner's vindictiveness analysis in Goldberg, I am troubled that he does not discuss or even seem to consider that due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct. That issue, which is significant not only for resentencing cases but also for initial sentencings post-Booker, has been discussed in the posts linked below:
UPDATE: Tom Lincoln at PRACDL Blog in this post notes that counsel in Goldberg at oral argument did not raise the due process/ex post facto, which surely partially explains why Judge Posner did not consider it. But I tend to expect Judge Posner to anticipate arguments that not raised by counsel, especially because this issue is potentially quite important for so many post-Booker cases.
May 5, 2005 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Third Circuit enforces appeal waiver post-Booker
The Third Circuit today, in US v. Lockett, No. 04-2244 (3d Cir. May 5, 2005) (available here), rejected the defendant's effort to obtain a resentencing under Booker despite his appeal waiver:
Lockett asks us to invalidate his sentence because he did not know at the time he pleaded guilty that the Supreme Court would later hold that the Sentencing Guidelines are advisory. However, this change in the law cannot effect a change in his plea.... The possibility of a favorable change in the law occurring after a plea agreement is merely one of the risks that accompanies a guilty plea. The record reflects that Lockett knowingly and voluntarily bargained for his plea agreement. He cannot now ask to re-bargain the waiver of his right to appeal because of changes in the law. We hold that where a criminal defendant has voluntarily and knowingly entered into a plea agreement in which he or she waives the right to appeal, the defendant is not entitled to resentencing in light of Booker.
In Lockett, the Third Circuit asserts it is joining "four other circuits" in reaching this conclusion, but in fact I believe that the Third Circuit is the last to formally rule on this issue. However, as I have argued in posts here and here, I am not sure the circuits are reaching ideal conclusions.
The Third Circuit's decision in Lockett is noteworthy given the circuit's practice of remanding seemingly every case for resentencing on Booker grounds with a standardized explanation. But, in its Davis account of its practices, as detailed here, the Court did explain that it was expressing "no view on waiver or alternative sentences."
UPDATE (two weeks later): An extremely informed reader sent me an e-mail providing a very helpful addendum on retroactivity matters:
Third Circuit's decision in Lockett [does not make] the Third Circuit the last to formally rule on the validity of waivers. The Fourth Circuit still has the issue under consideration in U.S. v. George Blick, No. 04-4887, which was argued March 18. There should be a decision any day. Also, I think that the D.C. Circuit still has not issued anything, but my recollection is that the U.S. Attorney's Office doesn't insist on appeal waivers (at least, it didn't in the past, because the district court judges wouldn't accept them, but that may have changed).
Constitutional challenge to AEDPA standards?
Howard Bashman at How Appealing reports in this post that the Ninth Circuit, nearly a decade after congressional passage of revised federal habeas standards through the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), is asking parties to address "whether AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this court should decline to apply the AEDPA standards in this case."
The Ninth Circuit's order is available here, and Howard rightly notes that the Justice Department likely "would want to participate in this debate either as an amicus or through intervention to defend the constitutionality of this important federal law." Of course, any broad ruling about habeas review standards could impact not only the many state capital cases that move through federal habeas, but also could eventually impact state Blakely claims when they make their way into federal habeas. This could be a big story that merits following closely.
Where the real Booker action can be found
Though all the recent Booker circuit action (some of which can be found in these posts) certainly is noteworthy, the real Booker action is to be found in the district courts where hundreds of sentences are imposed nationwide each day. My sense is that there are many interesting Booker rulings in district courts, some of which may not make it on-line, that reveal the considerable significance of Booker on the work of district courts. And though Freddie Booker did not benefit from his case, here are just a few recent cases that I came across in which other defendants have benefited from Booker:
- From the (always great) District of Maine, US v. Colby, No CR-04-23-B-W (D. Maine May 3, 2005) (Woodcock, J.)
- From the Southern District of West Virginia, US v. Moreland, No. 2:04-cr-00142 (S.D. W. Va. Apr. 27, 2005) (Goodwin, J.)
- From the District of Massachusetts, US v. Person, No. 03-cr-30029 (D. Mass. Apr. 27, 2005) and US v. Hubbard, No. 03-cr-30021 (D. Mass. Apr. 25, 2005) (Ponsor, J.)
- From the Eastern District of Virginia, US v. Cherry, No. 2:04-cr-16 (E.D. Va. Apr. 25, 2005) (Jackson, J.)
May 4, 2005
The waiting is the hardest part...
Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full." This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.
I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import. But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:
1. The validity and scope of the "prior conviction" exception. I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more.
2. The retroactive application of Apprendi, Blakely and Booker. Though nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.
3. Booker pipelines issues such as plain error. Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits. But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling. This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.
4. Blakely's applicability to restitution and other non-prison sentences. Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems. Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.
I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely). Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems. And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.
May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Revised draft of Pondering Modern Sentencing Process
As detailed in this post, the kind folks at the Journal of Criminal Law & Criminology asked me to write a Foreword for the journal's Supreme Court Review Issue. I now am able to share the latest proof of the article (downloadable below). Entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process," this article is something 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).
As noted before, this JCL&C article explores the constitutional implications of Blakely and Booker for sentencing procedures beyond the Sixth Amendment jury trial right. Because I have reproduced the article's intro in this prior post, here I thought I might share a few paragraphs from the final Part of the article (which pick up some themes from this recent post about sentencing burdens of proof):
The pitched battle over the rights and results in Blakely and Booker reflect competing visions of what procedural concepts and norms will take center-stage as the Supreme Court considers the applicable constitutional rules for modern sentencing decision-making. Justice Stevens leads a faction of the Court concerned about safeguarding procedural rights for defendants at sentencing, while Justice Breyer leads a faction of the Court concerned about ensuring that sentencing procedures serve the goal of sentencing uniformity. But, with Justice Ginsburg in Booker having allied herself with both of these competing factions, the schizophrenic Booker ruling further obscures which principles should guide lower courts when considering the many procedural issues beyond jury trial rights that follow in the wake of Booker.
Yet the fate and future of sentencing procedures — particularly concerning critical issues such as notice to parties and burdens of proofs — may depend greatly on the outcome of this conceptual battle. Consider, as but one possible example, the issue of burden of proof: A heightened concern for defendants' procedural rights at sentencing suggests a heightened burden of proof for facts which lead to longer sentences, but a concern for sentencing uniformity might support continued application of the preponderance standard of proof.
Fascinating development during jury sentencing
Last night in this post, I noted that the sentencing phase of the prosecution of Lynndie England, the Army reservist involved in abusing naked Iraqi prisoners at Abu Ghraib prison, would be interesting because of the military's use of true jury sentencing. But, thanks to TalkLeft here, I see the story has taken a new twist because, as a result of the mitigating evidence being put on by England, the judge has thrown out England's guilty plea, apparently because he is not convinced that she knew her actions were wrong at the time. More details are available in this CBS report.
Today's Booker circuit tour
Though I will still plan to post any blockbuster Booker circuit rulings when I see them, I am now growing fond of just periodically spotlighting notable circuit Booker decisions in one mega-post (as I did here yesterday). So, today we have:
From the Fourth Circuit, US v. Harp, No. 03-4817 (4th Cir. May 4, 2005) (available here) covers some interesting criminal history ground in the course of affirming a sentence.
From the Seventh Circuit, US v. Jaimes-Jaimes, No. 03-3871 (7th Cir. May 4, 2005) (available ere) also-also covers-covers criminal history issues, and also has an interesting discussion of the distinction between waiver and forfeiture.
From the Ninth Circuit, US v. Cardenas, No. 03-10009 (9th Cir. May 4, 2005) (available here) closes with an rejection of an effort to undue an appeal waiver based on Booker, stating a change in the law does not make a plea involuntary and unknowing."
From the Eleventh Circuit, US v. Davis, No. 04-14585 (11th Cir. May 4, 2005) (available here) rejects "the Government's argument that the grant of its U.S.S.G. § 5K1.1 motion eliminated or rendered harmless any Booker error." The key passages from Davis seem worth quoting:
The flaw in the Government's argument is that the grant of § 5K1.1 did not give the sentencing court "unfettered" discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered. This Court had previously stated, "When, on the Government's motion, a district court grants a downward departure under U.S.S.G. § 5K1.1 . . ., the sentence reduction may be based only on factors related to the defendant's substantial assistance." United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996). While the sentencing court had discretion under § 5K1.1 in deciding whether to depart from the guidelines and the extent of that departure, it did not have the discretion to consider factors unrelated to the nature and type of Davis's assistance. Importantly, the sentencing court could not permissibly consider the sentencing factors announced in 18 U.S.C. § 3553(a) when exercising its discretion.
We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553(a). Therefore, the Government cannot meet its burden of showing that the mandatory application of the guidelines in violation of Davis's Sixth Amendment right was harmless beyond a reasonable doubt.
UPDATE: As effectively reported here by Appellate Law & Practice, the Fifth Circuit also had a plain error reversal US v. Pennell, No. 03-50926 (5th Cir. May 4, 2005) (available here), and also the Tenth Circuit again closed the day by releasing a number of sentencing opinions, one of which involves Booker remands but the most of which involve affirmances of sentences on various grounds.
Dancing around Gomez in New Jersey and Tennessee
As detailed in this post, New Jersey's Attorney General recently submitted a letter to the NJ Supreme Court in the state's pending Blakely case which contends the "Supreme Court of Tennessee [in Gomez] was absolutely correct in its interpretation of Booker." I found this submission almost comical because Tennessee's own attorney general, as detailed here, has filed a petition to rehear Gomez (as has the Tennessee Association of Criminal Defense Lawyers, as detailed here). The Tennessee Supreme Court's ruling in Gomez finding Blakely inapplicable to Tennessee's sentencing scheme is discussed here, and my explanation of why that ruling seems to rest on a misunderstanding of Apprendi and Blakely is here.
The New Jersey Association of Criminal Defense Lawyers, serving as amicus in the NJ Blakely case, has now filed its own letter in the NJ Supreme Court concerning Gomez. Available for download below, this letter highlights that everyone is seeking rehearing in Gomez. Getting in an indirect dig at the effort by NJ's AG to use Gomez in New Jersey, the letter closes with this comment:
The Tennessee Attorney General's willingness to place intellectual honesty before political expediency is commendable, if not refreshing.
Relatedly, attorney David Raybin, who has been integrally involved in many Tennessee Blakely developments, was moved by the musical stylings in recent Booker song parody posts here and here to put Gomez to music. Here are highlights from his fitting effort:
The Blakely Tennessee Waltz (Rewritten by David Raybin)
Sung to the Tennessee Waltz (Originally Written by Pee Wee King and Redd Stewart)
I was appeal’n with my clients to the Tennessee Courts
When some new precedent I happened to see
I introduced it to my client
And while we were appeal’n
The Supreme Court stole my lawsuit from me
I remember the night and the Tennessee Courts
Now I know just how much I have lost
Yes, I lost my little appeal’n
The night they were misconstruing
The beautiful Tennessee Waltz
Capital punishment in theory and practice
A number of interesting death penalty items around the blogshpere merit a quick spotlight:
- Dan Markel at PrawfsBlawg shares an extended and quite thoughtful set of reactions to the paper by Cass Sunstein and Adrian Vermeule entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs" in this post. I previously commented and collected others' comments here, and the Sunstein and Vermeulepaper is linked in this post.
- Scott Henson at Grits for Breakfast reports in this post on the stalled status of a Texas bill which could have allowed the state to "opt-in" to the truncated federal habeas process created by AEDPA. The post is an interesting reminder that, a decade after AEDPA's passage, no state has taken the steps needed to qaulify as a opt-in state under AEDPA.
- The PRACDL Blog has two notable capital sentencing posts: this post details the results of "the first capital case to be tried to a penalty phase in Puerto Rico's recent history with the federal death penalty" (two life sentences); this post notes a forthcoming capital punishment conference.
Further reflections on burdens of proof and acquitted conduct
Though many interesting stories appear in yesterday's many circuit Booker rulings reviewed in this post, the Second Circuit's decision in US v. Gonzales, No. 04-1956 (2d Cir. May 3, 2005) (available here) has me again reflecting on burdens of proof and acquitted conduct in post-Booker sentencings. Though I have written a lot on this topic already, as detailed in the posts linked below and in my February USSC testimony, Gonzales (as well as the House Booker fix bill) provide more grist for the mill.
Gonzales involves a defendant who claims she was coerced into a drug conspiracy (although the district court precluded a jury instruction on the defense of coercion or duress). Though convicted at trial, the "jury answered two verdict questions finding that, contrary to the government’s allegation, Gonzalez's offense did not involve five kilograms or more, or 500 grams or more, of" cocaine. Nevertheless, at sentence (which took place before Blakely, I believe) the "government asserted that despite the jury's finding, the district court could independently find by a preponderance of the evidence that Gonzalez's offense involved at least five kilograms of cocaine."
Interestingly, District Judge Duffy at sentencing "stated that the two kilograms of cocaine that Gonzalez's husband possessed when he was arrested were foreseeable to Gonzalez and could theoretically form the basis of its sentencing calculation. But, refusing to vitiate the jury's drug weight finding, the district court determined that Gonzalez’s base offense level should be 24 — corresponding to a drug weight of at least 400 grams but less than 500 grams of cocaine." Based on this determination, the applicable guidelines range was 51 to 63 months, and Judge Duffy imposed a sentence of 63 months.
Among other arguments on appeal, Gonzales argued that the rule of lenity required an even lower offense level calculation. The Second Circuit rejected this claim, stating "the rule of lenity is not applicable to a district court's fact-finding role at sentencing." In the course of this ruling, the Second Circuit, somewhat unnecessarily, blessed the civil standard of proof at sentencing by stating district courts have "authority — that endures post-Booker — to resolve disputed facts by a preponderance of the evidence when arriving at a Guidelines sentence." But then, without directly confronting the fact that Judge Duffy opted to disregard his own factual findings about drug quantities attributable to Gonzales, the Second Circuit "affirm[ed] the district court's initial Guidelines determination."
In other words, though the Gonzales decision directly blesses a judge's authority to apply a preponderance standard of proof at sentencing, it also indirectly blesses Judge Duffy's decision to refuse to consider acquitted conduct and thereby give effect to a beyond a reasonable doubt standard. (Judge Duffy's decision calls to mind Judge Gertner's recent work in Pimental, in which she rejected application of preponderance fact-finding to allow consideration of acquitted conduct.)
As I explain in posts linked below, applying the civil law preponderance standard to facts which increase criminal penalties has never seemed quite right to me as a matter of policy. Interestingly, the House Booker fix bill (HR 1528) actually addresses burdens of proof in one section. However, revealing HR 1528's disturbingly imbalanced nature, the bill requires judges to justify a decision to depart below the guidelines by clear and convincing evidence, but it says nothing about applying a heightened proof standard to decisions which increase a guidelines sentence.
- More about beyond a reasonable doubt at sentencing
- Requiring proof beyond a reasonable doubt in any legislative fix
- Burdens of proof and a new due process of sentencing
- Judge Gertner speaks on acquitted conduct
Booker and Booker, round 2
The Wisconsin State Journal had this terrific article reporting on Freddie Booker's resentencing in which, as discussed here, he received the same 30-year sentence that he initially received. The article reports that Freddie Booker plans to appeal again. I suspect he will argue that a 30-year sentence for an aging non-violent drug offender is "greater than necessary" to serve the purposes of punishment.
The article incudes a nice overview of the state of Booker in the federal courts, and emphasizes the variation in sentencing approaches we are seeing even within one state:
Even between Wisconsin's two federal court districts, the contrast in the effect of the Booker case on sentencing can be stark. Chip Burke, senior litigator for Federal Defender Services of Wisconsin, which represents indigent clients, said judges in Wisconsin's Eastern District, headquartered in Milwaukee, have mostly embraced the Booker decision and used their discretion to grant shorter sentences than what federal guidelines have suggested — sometimes even less than what prosecutors and defense attorneys have recommended....
Meanwhile, in the Madison-based Western District, some attorneys complain that [Judge] Shabaz [who sentenced Booker] and Judge Barbara Crabb aren't thinking about whether the guidelines are excessive.
A dissent from circuit business as usual post-Booker
In addition to all the notable circuit Booker action detailed in this post, late yesterday the Fifth Circuit released US v. Creech, No. 04-40354 (5th Cir. May 3, 2005) (available here), which is noteworthy principally because of Judge Emilio Garza dissent from footnote 2 of the court's opinion.
In footnote 2 of Creech, the Fifth Circuit, drawing on its prior Villegas decision (discussed here), asserts that "Booker did not alter the standard of review we must employ when reviewing a court's interpretation and application of the Guidelines." In that footnote, the Creech court cites post-Booker decisions from other circuits to the same effect, and just this week the 8th Circuit in Mathijssen and the 11th Circuit in Crawford came to the same conclusion.
Not so fast, says Judge Garza, who asserts in his partial dissent that "footnote 2 and Villegas's dicta contravene the clear language in Booker." Here are highlights from Judge Garza's articulation of his understanding of appellate review after Booker:
Nothing in Booker suggests a de novo review.... I believe we review sentencing decisions for unreasonableness regardless of whether the district court applies the Guidelines and, in cases where the district court does apply the Guidelines, regardless of whether it does so correctly....
Having excised § 3742(e), we no longer review sentences for "violation of law" and "incorrect application," but rather for unreasonableness....
By replacing Booker's unreasonableness standard of review with a de novo review, the court is essentially reimposing 18 U.S.C. § 3553(b)(1), the severed provision that made the Guidelines mandatory. Booker recognizes that de novo review is used in conjunction with mandatory systems.... Following Booker's admonition, de novo review is inconsistent with an advisory system.
Here, the district court properly interpreted and applied the Guidelines, resulting in a reasonable sentence.... I agree that to ascertain whether the Guidelines have been applied properly, a preliminary step in our review, requires de novo review of legal issues and clearly erroneous review of factual issues. However, any determination that either or both determinations are error does not end the inquiry as it did pre-Booker. The court must take the additional step to determine whether the sentence decision is unreasonable in light of the factors listed in § 3553(a).... In reviewing for reasonableness, we must remember that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000) (discussing unreasonable applications under AEDPA) (emphasis in original). Here, the district court’s sentence was a correct application of the advisory Guidelines, and I agree that we should hold Creech’s sentence reasonable. Thus, I concur in the judgment and in most of the opinion except for this most important, but erroneous, footnote.
Intriguing (high-profile) example of jury sentencing
There are many stories which surround the prosecution and guilty plea of Lynndie England, the Army reservist involved in abusing naked Iraqi prisoners at Abu Ghraib prison. But my interest is captured by military's use of true jury sentencing (see background here and here on military trial procedures).
The New York Times has this account of the on-going sentencing trial of England, and TalkLeft comments here on the mitigating evidence being presented. I find particularly intriguing the reports that England's plea deal capped the sentence she could receive, as she will apparently receive the lesser of the military jury's sentence or the term specified in the plea bargain.
I wonder if counsel in civilian cases ever consider this "lesser sentence" sort of plea agreement. I am not even sure such a deal could be engineered, or would be accepted, in a jurisdiction that relies on judicial sentencing.
May 3, 2005
Rapid Booker tour around the circuits
What would a weekday be without some discussion of Booker circuit opinions? I guess we won't find out today, as I provide some very quick circuit highlights here. Not all of the cases noted below are ground-breaking, but they all make for quite interesting reads.
From the First Circuit, US v. Bailey, No. 03-2362 (1st Cir. May 3, 2005) (available here) is an appeal by "one of seven jailers charged with federal offenses arising from five incidents ... where guards employed excessive force against pretrial detainees and then acted to conceal their misconduct." The First Circuit affirms in an opinion that rejects the defendant's invitation "to disregard Antonakopoulos and hold instead that the burden should rest with the government to defend the pre-Booker sentence." Appellate Law & Practice provides more highlights in this post.
From the Second Circuit, US v. Gonzales, No. 04-1956 (2d Cir. May 3, 2005) (available here) has an interesting post-Booker discussion of the rule of lenity. Appellate Law & Practice provides more details and highlights in this post.
From the Fifth Circuit, US v. Guevara, No. 03-11299 (5th Cir. May 2, 2005) (available here) involves an appeal from a life sentence imposed on a defendant who committed an "anthrax hoax" through a letter written and mailed to a US District Judge. Notably, the application of the career-offender provisions raised the defendant's guideline sentence from a high of 78 month to life imprisonment, but on appeal the defendant's various sentencing challenges were rejected. Appellate Law & Practice provides more highlights here.
From the Seventh Circuit, we get three notable criminal opinions, all of which involve sentencing remands: US v. Ngo, No. 04-2662 (7th Cir. May 3, 2005) (available here), covers criminal history issues and seems to have interesting Shepard analysis; US v. White, No. 03-2875 (7th Cir. May 3, 2005) (available here), and US v. Castillo, No. 02-3584 (7th Cir. May 3, 2005) (available here), seems like a fairly standard Paladino remands but they become more noteworthy because Judge Easterbrook, dissenting from the decision not to rehear these appeals en banc, complains about "applying Paladino to no-constitutional-error situations."
From the Eleventh Circuit, US v. Ducas, No. 04-15319 (11th Cir. May 3, 2005) (available here) proves it is possible to previal on plain error in the 11th Circuit. Also, the facts and holding of the Ducas reveals that some defendants benefit from the fact that the 11th Circuit is not focusing upon the fourth plain error prong (as is the 10th Circuit and as Judge Easterbrook would like to do). Appellate Law & Practice provides more details on Ducas and a few other recent 11th Circuit Booker decisions in this post.
UPDATE: I also now see that the Tenth Circuit has released a half-dozen published sentencing opinions, one of which involves Booker remands but the most of which involve affirmances of sentences on various grounds.
The more things change...
I just got word that this afternoon Wisconsin US District Judge John Shabaz resentenced Freddie Booker to the same 30-year sentence that he initially received (as I vaguely predicted in this morning post). I will leave it to readers to decide whether Won't Get Fooled Again or Once in a Lifetime or Desparado is the appropriate tune to play in the background as we consider this development and the rest of the post-Booker world. I will be interested to hear the reaction of T Chris of Talk Left, who represented Booker and helped secure his "victory" in the Supreme Court.
UPDATE: In this post, T Chris reports he is "disappointed, to say the least."
Relatedly, does anyone know when Ducan Fanfan is scheduled to be resentenced?
New report on marijuana offenses
I have just received a note from folks at The Sentencing Project about its new report on marijuana policy, entitled "The War on Marijuana: The Transformation of the War on Drugs in the 1990s." The report, which can be accessed at this link, indicates that "since 1990, law enforcement priorities have become heavily skewed toward arresting low-level marijuana offenders as part of the 'war on drugs' strategy." The e-mail I received details the following highlights of the report:
- 82% of the 450,000 increase in drug arrests since 1990 has been for marijuana offenses, and 88% of this rise has been for possession offenses.
- Marijuana arrests now total 700,000 a year nationally, representing 45% of all drug arrests.
- Arrests for marijuana offenses rose by 113% from 1990 to 2002, while arrests for all other drug offenses increased by just 10%.
- Most marijuana arrests are for low-level offenses, with only 1 in 18 resulting in a felony conviction.
- While African Americans constitute an estimated 14% of regular marijuana users, blacks are 30% of persons arrested for marijuana violations.
A musical summary of Booker appeals
I was hoping my musical take on a recent 11th Circuit Booker decision might jump-start the once-fervent, now-dormant Blakely-Booker song parody craze. (As detailed in the comments to this post, late last year Milbarge of Begging the Question had earned the title of Weird-Blakely Yankovic with his inspiring and hysterical Take a Walk on the Blakely Side and 'Twas the Night Before Booker. And those with different musical tastes could fill out their collection with Booker's Got Back from Curtis.)
Wonderfully, the fine folks at Begging the Question have stepped up to the silly song challenge with a Booker-ized version of a classic from The Eagles. As the mysterious Fitz-Hume explains, this brilliant Booker song parody is "about the vagaries of appealing a conviction in the post-Booker world." Here are the first two stanzas, and at this post you can enjoy the full Desperado:
Why you appealin' your sentence?
All of your brilliance, it won't help you now.
You got a long time,
But the judge had her reasons.
These things you're appealin'
Can hurt you somehow.
Don't you draw the 'leventh Circuit, boy,
If your error is a plain one.
You know the Ninth out west is always your best bet.
Now some judges are the harsh ones,
And some judges are humane ones,
So you roll the dice and take what you can get...
More perspectives on Massachusetts death penalty bill
The introduction by Massachusetts Governor Mitt Romney of a bill to bring capital punishment back to the state (first discussed here, initial commentary here) is already garnering interesting debates. For example, the Boston Herald has weighed in with this editorial which contends "the categories of murder justifying capital punishment in Romney's bill are too narrowly drawn and the jury's "no doubt'' standard is set ridiculously high." The Herald also notes in this article that advocates of the death penalty are not too impressed with the proposal:
"It looks like it was written by a criminal defense attorney,'' said Mike Paranzino of the pro-death penalty group Throwawaythekey.org. "It is stacked again and again in the killers' favor and victims are an after-thought. It would be unlikely to ever lead to an execution in Massachusetts.''
Meanwhile, The Republican has expressed its opposition to the bill in this editorial which stresses that "no death penalty is foolproof, even with multiple safeguards in place." Taking a different approach, I was pleased to see the Blue Mass. Group blog in this post has picked up the theme of costs, which I flagged in my earlier commentary here, asking "is Romney absolutely committed to the vast sums it will cost to provide highly qualified counsel, scientific testing, and all the rest of the bells and whistles this bill promises? And how, exactly, does he plan to do that while cutting taxes?"
I have received a copy of the bill, which comes fronted by an interesting cover letter signed by Gov. Romney. You can download below the bill, and come to your own judgments on its merits.
Freddie Booker to be resentenced today
I heard from a reporter yesterday that Freddie Booker is due to be resentenced this afternoon in Wisconsin by US District Judge John C. Shabaz. Though I have not seen any of the papers filed in the resentencing, my guess is that the government is asking for Judge Shabaz to impose the same 30-year sentence that was initially given to Freddie Booker. And if Judge Shabaz does impose the same 30-year term, I wonder if the defense team will consider pursuing another appeal (or instead will just be left to hum Won't Get Fooled Again or Once in a Lifetime or other Songs in the key of 3553).
UPDATE: As detailed in this post, Freddie Booker did receive 30 years at his resentencing.
May 2, 2005
Florida Supreme Court declares Apprendi is not to apply retroactively
I have been so preoccupied of late with federal sentencing stories, I have not reported on some interesting recent state cases. Perhaps the most notable of the bunch is the decision by the Supreme Court of Florida in Hughes v. Florida, No. SC02-2247 (Fla. Apr. 28, 2005) (available here), which declares, by a 5-2 vote, that "that Apprendi does not apply retroactively."
Hughes is a thoughtful decision all around, with the dissenters making an interesting argument for retroactivity based on the particulars of Florida law. But the majority is not convinced, and in the majority's opinion there is this particularly informative account of the state of Apprendi retroactivity nationwide:
We also find it persuasive that all but one of the federal courts of appeals have expressly considered the issue, albeit under a different retroactivity analysis, and not one has held Apprendi to apply retroactively. Several state courts also have considered the issue, and again not one has held Apprendi to apply retroactively. Finally, the United States Supreme Court has held that Ring, which applied Apprendi in the death penalty context, does not apply retroactively.
UPDATE: Michael Ausbrook at INCourts has this extended post discussing Hughes and retroactivity and other related issues more generally.
Another high-profile Connecticut Booker variance
As detailed in articles here and here, today former Connecticut NAACP leader Ben Andrews was sentenced to 30 months in prison "for helping steer hundreds of millions in state pension fund investments, but the once influential Republican steadfastly maintained his innocence." Because the reported guideline range was 57-71 months, District Court Judge Ellen Burns had to depart or vary to impose this sentence. Here's the AP account:
Andrews faced up to about six years in prison according to federal sentencing guidelines, but Burns said his "lifetime of devotion" to civil rights work merited a more lenient sentence.
Andrews and his supporters said that wasn't enough. They wanted him to receive a sentence in line with the yearlong term former Gov. John G. Rowland received for unrelated corruption.
The basic story of Rowland's sentence can be found in this post, and a collection of commentary on that sentencing is here. Of course, news of another white-collar defendant getting a reduced sentence has me again speculating, as I did here, that this group of offenders is doing particularly well in the post-Booker world.
UPDATE: Peter Henning at White Collar Crim Prof Blog has more news and commentary on the Andrews sentencing in this post.
Same as it ever was...
With a hat tip to David Byrne, today's decision by 11th Circuit in US v. Crawford, No. 03-15136 (11th Cir. May 2, 2005) (available here), has me humming a Booker tweaked version of one of my favorite Talking Heads songs:
And you may ask yourself, How does Booker work?And you may ask yourself, Where is that large Booker change?And you may tell yourself, This is not a beautiful new sentencing system!And you may tell yourself, This is not a beautiful new sentencing world!Letting the Booker days go by / Let the caselaw hold me downLetting the Booker days go by / Caselaw flowing underground...Same as it ever was...Same as it ever was...Same as it ever was... Same as it ever was...Same as it ever was...Same as it ever was... Same as it ever was...Same as it ever was...
Peter Henning at the White Collar Crim Prof Blog here provides the details of Crawford. The most consequential aspect of Crawford is the 11th Circuit's conclusion, in line with the 8th Circuit Mathijssen ruling earlier today, that "as was the case before Booker, the district court must calculate the Guidelines range accurately" and "Booker does not alter our [pre-Booker standards for] review of the application of the Guidelines." And, gosh, does post-Booker review look like pre-Booker review in Crawford: the 11th Circuit remands for resentencing by holding that the district court erred in failing to apply an upward enhancement and in deciding to depart downward based on a combination of factors.
Folks inspired by this post to Booker-ize their I-Pods should also be sure to harken back to a prior post entitled Songs in the key of 3553.
11th Circuit says juvenile offenses come within prior conviction exception
Just yesterday I had a chance in this post to spotlight a thoughtful state case which concluded, following the Ninth Circuit's decision in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), that a "juvenile adjudication does not constitute a prior conviction under the Apprendi exception." Coincidently, the Eleventh Circuit had occasion to speak to this issue for the very first time today in US v. Burge, No. 04-13468 (11th Cir. May 2, 2005) (available here). And fans of circuit court sentencing action will not be surprised to learn that the 11th Circuit in Burge was not convinced by the 9th Circuit's approach to juvenile offenses and the prior conviction exception.
Burge cover a lot of interesting sentencing ground, including Booker and Shepard issues. But its extended analysis of the place of juvenile convictions within the Apprendi story is the most noteworthy aspect of the decision. Here's a taste:
"[T]rial by jury in the juvenile court's adjudicative stage is not a constitutional requirement." McKeiver, 403 U.S. at 545. Further, although the Court's Jones and Apprendi decisions discuss the right to a jury trial as a procedural safeguard, neither case addresses juvenile adjudications and neither case explicitly states that a juvenile adjudication can only count as a prior conviction under the ACCA if the juvenile was afforded the right to a jury trial. At a minimum, however, Apprendi's prior conviction exception is based on the procedural safeguards that attach to a prior conviction or juvenile adjudication.
Prior to Almendarez-Torres, we recognized that the fact of a prior conviction under section 924(e) "merely links the severity of the defendant's punishment for a violation of the predicate offense § 922(g) to the number of previous felony convictions" and need not be submitted for jury consideration because "the defendant has received the totality of constitutional protections due in the prior proceeding on the predicate offense." United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir. 1990). We explained that "[i]t was unnecessary for the jury to consider the defendant's prior convictions, for these convictions were not an element of the offense for which he was indicted and to which he entered his plea of guilty." Id. at 1525. And we concluded that "[w]hile the Due Process Clause indeed requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, in sentencing those already constitutionally convicted the courts have traditionally operated without constitutionally imposed burdens of proof." Id. at 1526-27. Although we did not consider the use of a prior juvenile adjudication in McGatha, its rationale is consistent with [other circuit decisions rejecting Tighe], and can be applied in this case. Accordingly, "[a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes." Jones, 332 F.3d at 696. Here, we are persuaded that Burge received the totality of constitutional protections due in his prior juvenile proceeding.
Eighth Circuit remains a busy sentencing bee
The Eighth Circuit on Friday issued two major sentencing decisions: Pirani on Booker plain error (basics here and commentary here) and Doe on sex offender residency restictions (basics here and commentary here). Obviously not a circuit to rest on last week's hard work, today the Eighth Circuit issued two more noteworthy sentencing opinions.
For Booker fans, we have US v. Mathijssen, No. 04-1995 (8th Cir. May 2, 2005) (available here), in which the court gives us the following insights about the application of Booker's unreasonableness standard (with some citations omitted):
We review the application of the sentencing guidelines de novo and review the district court’s factual findings for clear error. We continue to review de novo the interpretation and application of the guidelines provisions after Booker.
We conclude that the unreasonableness standard articulated by the Supreme Court in Booker applies only to the district court's determination of the appropriate ultimate sentence to impose based on all the factors in 18 U.S.C. § 3553(a), not to the district court's interpretation of the meaning and applicability of the guidelines themselves. We must continue to interpret the correct meaning and application of guidelines language, because the district court must continue to determine "the appropriate guidelines sentencing range," as it did pre-Booker, before it considers the other factors in 18 U.S.C. § 3553(a). The now-advisory guidelines, when correctly applied, become a consideration for the district court in choosing a reasonable ultimate sentence. Reasonableness, therefore, may be "directly linked to the district court's misapplication of a relevant Guideline," United States v. Killgo, 397 F.3d 628, 631 (8th Cir. 2005), but is based on broader considerations than whether the guidelines were properly applied.
For capital sentencing fans, we have the en banc decision of US v. Allen, No. 98-2549 (8th Cir. May 2, 2005) (available here). Since Allen cover a lot of ground, I'll rely on the official summary of the court's unanimous opinionfrom the Circuit's opinion page:
On remand from the Supreme Court for reconsideration under Ring v. Arizona, 536 U.S. 584 (2002), the court holds: (1) the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment; (2) the indictment in this case suffered a Fifth Amendment defect; (3) the defect in the indictment was not a structural error; (4) the error was harmless because any rational grand jury would have found the existence of the requisite mental state and one or more statutory aggravating factors based on the actual evidence which was presented to the grand jury in the case, to wit, that defendant created a grave risk of death to others while committing the bank robbery and in fleeing apprehension and that he acted with the required mental state when he intentionally shot and killed a bank guard; (5) mere possibility of grand jury nullification does not transform harmless error into a prejudicial error, and defendant could show nothing more than a possibility; and (6) constitutional challenge to Federal Death Penalty Act rejected.
The weekly SCOTUS GVR report
You can set your calenders these days by SCOTUS action: if it is Monday morning, it is time for more Booker-inspired GVRs from the Supreme Court. As was true last week, this morning brings three dozen more such GVRs on this order list. Is anyone out there keeping an accurate running count on how many total Booker-inspired GVRs we've seen?
On another front, as SCOTUSblog reports here, the less notable of two cert grants today has the court granting review in "LaMarque v. Chavis (04-721), another case on the suspension of the one-year filing deadline for federal habeas petitions." Though I love AEDPA jurisprudence as much as the next guy, this cert grant enhances my concern, previously expressed here and here, that SCOTUS is not allocating its limited time and energy toward addressing the most pressing, consequential and far-reaching criminal justice issues.
A long weekend update
Anyone who took a long weekend missed a lot of news and commentary appearing since the close of business on Thursday. Here are some highlights:
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Is the Booker plain error split now finally cert. worthy?
- 8th Circuit decides Pirani plain error en banc
- Third Circuit clarifies(?) its unique approach to Booker pipeline cases
- A reasonable(?) approach by the Fourth Circuit
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Lots of interesting reports from the sentencing front lines
- USSC FY 2003 data now available!
- Lil' help for Lil' Kim
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- New Jersey AG wants Gomez to spread to the Garden State
- The tension between the prior conviction exception and juvenile offenses
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
SEX OFFENDER SENTENCING DEVELOPMENTS AND COMMENTARY
May 1, 2005
Is the Booker plain error split now finally cert. worthy?
I have done a number of prior posts here and here and here pondering whether the Supreme Court will grant cert on a Booker plain error case to address the deep circuit divisions on the issue. This past week's developments — in which the Third Circuit finally explained en banc in Davis its rationale for sending nearly all Booker pipeline cases back for resentencing (detailed here) while the Eighth Circuit en banc in Pirani adopted perhaps the toughest possible approach to various "pipeline" issues (detailed here) — has only ripened the plain error conflict and further spotlighted the dramatically different "pipeline" justice that federal defendants are receiving in the wake of Booker.
Notably, Judge Heaney closed his Pirani dissent, just like Judge Lucero from the 10th Circuit in Gonzalez-Huerta (as noted here), with a call for Supreme Court action on plain error:
The stated goal of the Guidelines was to create "a system that diminishes sentencing disparity." Booker, 125 S. Ct. at 759. This goal is undermined when circuits apply different standards in determining whether a defendant sufficiently preserved his Sixth Amendment sentencing challenge in the district court, and is further undermined when circuits differ on the question of how to deal with Booker claims on plain error review. Hopefully, the Supreme Court will promptly resolve these differences, and do so in a manner true to the essence of Booker's concern for basic rights of the defendant under the Sixth Amendment.
I have heard that the cert petition from the Eleventh Circuit's Rodriguez decision is still being briefed, and I expect cert petitions are coming from defendants in Pirani and other circuit cases that have been tough on plain error. What seems less predictable is whether DOJ will seek cert in Davis (or in Ameline from the Ninth Circuit if, as has been predicted to me, the government does not get a complete win in that en banc case).
As I have discussed before here and here, plain error presents only a transition problem that the Supreme Court, because of its briefing and argument schedule, likely would not be able to resolve anytime soon. Consequently, I could imagine DOJ deciding plain error is not worth a protracted SCOTUS fight, especially since there are so many more important long-term post-Blakely and post-Booker to focus upon (e.g., the scope and future of the prior conviction exception or the meaning of appellate review for reasonableness).
Nevertheless, no matter how you look at it, the plain error division — which I called a three-ring circus in this post — is an ugly example of disparate justice. And I was especially bemused to see Judge Bye in his Pirani partial dissent running with the circus metaphor:
The phrase "three-ring circus" (referring to the three-way circuit split) has been used to describe the federal circuits' disparate handling of Booker pipeline cases. Such a phrase is descriptive, nonetheless, it is probably more appropriate to characterize the split as a three-ring circus with twelve unique acts each attempting to dazzle us with its compelling logic. Yet, despite the unique nature of each act, like the conspicuous facial hair on the bearded lady, one common theme prevails — the undeniable difficulty in assessing the prejudice suffered by any particular defendant.
New Jersey AG wants Gomez to spread to the Garden State
Though I do not have an electronic copy to post, I can report that New Jersey's Attorney General has recently submitted a letter to the NJ Supreme Court in the state's pending Blakely case which contends the "Supreme Court of Tennessee [in Gomez] was absolutely correct in its interpretation of Booker." This letter seems almost comical because Tennessee's own attorney general, as detailed here, has filed a petition to rehear Gomez which contends that in Gomez the Supreme Court of Tennessee "has overlooked or misapprehended a material proposition of law."
In other words, Tennessee's own AG realizes that Gomez is wrong and needs to be overturned, but New Jersey's AG wants the NJ Supreme Court to rely on Gomez to uphold New Jersey's sentencing scheme. (The Tennessee Supreme Court's ruling in Gomez which found Blakely inapplicable to Tennessee's sentencing scheme is detailed here, and my explanation of why that ruling seems to rest on a complete misunderstanding of Apprendi and Blakely is detailed here.)
Relatedly, Michael Ausbrook over at INCourts has a recent post, fittingly titled More on Misunderstanding Booker by the States, which discusses Gomez and other state rulings falling prey to its misunderstanding of Blakely and Booker.
The tension between the prior conviction exception and juvenile offenses
Many months ago I did this extended post spotlighting the legal debate over whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule. As noted before, there is a split on this important issue that encompasses not just federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but also major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).
Over the weekend I was sent a thoughtful opinion from Washington state on this issue, Washington v. Tagaloa, No. 04-1-03162-8 SEA (Wash. Sup. Ct. Apr. 15, 2005) (available here). Here is the opinion's concluding paragraphs:
This Court does not question that it could make the factual determination of the existence of a prior juvenile adjudication. However, what is called into question is the legal determination regarding that adjudication. Unlike the prior conviction at issue in Apprendi, the instant adjudication may have received fair notice and a reasonable doubt standard, but did not receive "jury trial guarantees." Absent this fundamental protection, the instant adjudication does not qualify under the Apprendi exception. The process adopted for juvenile adjudications may provide sufficient due process protection for the purpose for which it is employed, i.e., rehabilitation, but the procedure falls short of the full panoply of rights required for purposes of sentencing enhancement as an adult.
If we wish to continue with the notion that the juvenile system is indeed separate and apart from the adult system –- with different goals and different protections, indeed different terminology, then it is unjust and unfair to allow juvenile adjudications to be treated as convictions for purposes of sentencing enhancements without the full panoply of rights afforded to adult defendants.
For the foregoing reasons, this court rules that that Mr. Tagaloa's juvenile adjudication may not be counted as part of his adult offender score under the SRA because it violates the due process protections of the Sixth Amendment. A juvenile adjudication does not constitute a prior conviction under the Apprendi exception. The fact of a juvenile adjudication can not be used to increase the penalty for a crime beyond the prescribed statutory maximum because juveniles are not afforded trial by jury to make the determination which is later used to increase an offender score.
May 1, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (4) | TrackBack
Indiana's Blakely fix is now law
Michael Ausbrook at INCourts is reporting here that Indiana's Blakely fix legislation, known as Senate Bill 96 while in development, has become law. As I explained in this prior post, though the state was once headed toward Blakely-izing its sentencing scheme, I believe the enacted version of Senate Bill 96 Booker-izes Indiana's sentencing statutes by making them advisory. Michael Ausbrook in this post explores the possible impact of Indiana's new legislation on sentencing appeals, and he reports that a "lawyer who knows a great deal about Blakely in Indiana has said that Senate Bill 96 will set criminal law in Indiana back decades."
Sex (offenders) in the city
I now have had a chance to read the Eighth Circuit's decision in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upholds 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." As noted in this post, Mike at Crime & Federalism has already blogged up a storm about the case, and his three posts here and here and here (along with the comments) get to the heart of the legal and policy issues in the case. Concerning Doe itself, I will just add that the case is especially interesting for its substantive due process analysis and also for its reliance on "common sense" rather than hard evidence about sex offender reoffending. Also, the Doe decision, which provides a thoughtful review of a range of sex offender law and policy issues, provides a helpful list in footnote 4 of the twelve other state statutes that place residency restrictions on sex offenders.
Though a lot more could be said about Doe, the broader story is the new social panic about sex offenders which is, like so many criminal justice developments, driven by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis. (I have prior sex offender posts on the power of the headline-making crime and on the surprising and encouraging data about sex offenses and offenders.) Tellingly, this New York Times article today details that Florida, prompted by two terrible crimes, "will soon begin the nation's most aggressive monitoring of child molesters at a time when dozens of states and localities are re-examining their policies." The NY Times article provides an effective national overview of sex offender developments, though the article lacks a refined discussion of the reach and efficacy of what has now been a decade of new criminal laws focused on sex offenses and offenders.
I am concerned about refined discussions of these laws because I fear they can often be written in broad ways that may harmfully fail to distinguish the truly dangerous from others. Though the term sex offender often brings to mind the worst child molester, many sex offender laws can encompass persons who had underage consensual sex or who merely downloaded the wrong dirty pictures of the internet. (Consider the work of the group of Save Our TexSONS, which seeks to prevent "unfair use of [sex offender] laws to prosecute teenagers engaging in consensual sex.")
Relatedly, I fear that broad residency restrictions, which may prevent offenders from living in cities or other areas in which treatment and support services are more readily available, may undermine efforts to keep sex offenders from reoffending. What seems most important to me is that there are follow-up studies and analyses of the efficacy of the sex offender laws which are now being considered a passed during this period of panic.