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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."

Download aussie_view_on_posner_and_denial_of_human_rights.doc

May 7, 2005 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

The week that was

It's time again for a weekly wrap-up.  You know the drill:






May 7, 2005 | Permalink | Comments (0) | TrackBack

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.

May 6, 2005 in Almendarez-Torres and the prior conviction exception, Booker and Fanfan Commentary, Booker in the Circuits | Permalink | Comments (0) | TrackBack

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.

May 6, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

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).

Download judge_presnell_williams_opinion.pdf

Download williams_exhibit_b_presnell_letter_to_usa.pdf

Download williams_exhibit_c_usa_letter_to_presnell.pdf

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:

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:

May 5, 2005 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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:

UPDATETom 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).

May 5, 2005 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

May 5, 2005 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

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:

May 5, 2005 in Booker in district courts | Permalink | Comments (0) | TrackBack

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 BookerThough 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.

Download final_pondering_process_proofs.doc

May 4, 2005 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

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.

May 4, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

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.

May 4, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

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.

Download nj_reply_letter_re_gomez.pdf

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

May 4, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Capital punishment in theory and practice

A number of interesting death penalty items around the blogshpere merit a quick spotlight:

May 4, 2005 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

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.

May 4, 2005 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

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.

May 4, 2005 in Booker and Fanfan Commentary, Booker in district courts | Permalink | Comments (0) | TrackBack

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.

May 4, 2005 in Booker and Fanfan Commentary, Booker in the Circuits | Permalink | Comments (2) | TrackBack