May 21, 2005
More for the sentencing reading list from SSRN
As if our reading list was not long enough based on the dozens of articles noted in prior posts here and here and here and here, the following pieces appearing recently on SSRN certainly merit attention for those interesting in various sentencing issues:
- Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker by Frank O. Bowman, III
- Murder, Meth, Mammon, and Moral Values: The Political Landscape of American Sentencing Reform by Frank O. Bowman, III
- Sectarian Reflections on Lawyers' Ethics and Death Row Volunteers by Richard W. Garnett
- Horizontal Federalism in an Age of Criminal Justice Interconnectedness by Wayne A. Logan
- Victims, Survivors and the Decisions to Seek and Impose Death by Wayne A. Logan
- Sentencing Reform Reform: The Sentencing Information System Alternative to Sentencing Guidelines by Marc L. Miller
And, though I have already plugged the piece in this post, I will note that you can now also download via SSRN my article Beyond Blakely and Booker: Pondering Modern Sentencing Process, which is forthcoming in the Journal of Criminal Law and Criminology.
May 20, 2005
SG is seeking cert. on plain error!
As revealed by the week-in-review post below, I was ready to pack it in for the day a few minutes ago. But, a last check of e-mail brings news of a big filing by the Solicitor General in the Supreme Court concerning the Booker plain error mess. Specifically, in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit (details here and here), the SG has responded to the defendant's cert. petition by saying review is warranted. Here is the key opening paragraph in the filing you can download below:
Petitioner contends that this Court's review is warranted to resolve a conflict in the circuits on the proper application of the plain-error standard to forfeited claims of sentencing error under Booker. The court of appeals in this case correctly held that petitioner was not entitled to relief on his unpreserved Booker claim, and the conflict in the circuits involves a transitional issue that may have limited continuing importance once the cases in which sentences were imposed before Booker have become final. Nonetheless, the multi-circuit conflict on the issue is deep and real, and it implicates issues concerning the proper conduct of Plain-error review that could recur in other contexts. Accordingly, this Court's review is warranted.
Because I have tickets to see Revenge of the Sith this evening, commentary may have to wait on this big development that I'm calling Revenge of the BIPP (Breyer's Incomprehensible Pipeline Paragraph). In the meantime, readers are urged to use the comments to weigh in on this interesting development.
UPDATE: Lyle Denniston at SCOTUSblog provides this post with background on the facts of Rodriguez and the development of the plain error issue. Also, in this post way back in February, I discussed the original cert. petition filed by the firm Jones Day. That petition, which is now a bit dated due to all the subsequent circuit developments, is available at this link.
Reviewing the week that was
I predicted a big sentencing week in this preview post, and that prediction in my view came true even though we did not get any major rulings from SCOTUS this week. In any event, you can make your own assessment based on this review of major posts from this week past:
LEGISLATIVE DEVELOPMENTS AND COMMENTARY
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- More district court action on crack/cocaine disparity
- Judge Cassell on fast-track and family circumstances
- Reports on Booker resentencings
- Tough sentences for white-collar offenders
APPELLATE COURT BOOKER DEVELOPMENTS AND COMMENTARY
- The Monday Booker GVR report
- Third Circuit joins non-retroactivity bandwagon
- 6th Circuit discusses post-Booker appellate review and plea dynamics
- Booker, Crawford, Ex Post Facto, oh my...
- Yet another big sentencing day for the 8th Circuit
- 7th Circuit coverage of restitution
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Tennessee Supreme Court denies rehearing in Gomez (but legislative fix still in works)!
- What's the next dance step in Tennessee's Blakely waltz?
- A taste of Tennessee Sour Mash
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?
- Notable death row reprieve request
- Another FSR issue heading to press
- An assessment of the war on drugs by the RAND Corporation
- Justice Kennedy reiterates his ABA comments on federal sentencing
- Fascinating circuit cases revealing unique victim perspectives
- Reaching economic tipping points for tough-on-crime movements
More district court action on crack/cocaine disparity
As detailed in a series of prior posts (here and here and here), Booker has breathed new life into the debate over crack/powder cocaine sentencing in the federal system. And, thanks to this helpful post on this important issue at the PRACDL Blog, I see that the recent decision of US District Judge Ronnie Greer in US v. Clay, Cr. No. 03-73 (E.D.Tenn. May 6, 2005) (available here), should be added to the list of opinions that examine the crack/powder ratio and address concerns with the aid of post-Booker authority.
Judge Greer's conclusions in Clay nicely summarize the important work done in the opinion:
Taking all the foregoing factors into consideration, and taking into consideration the congressional mandate that sentences for crack offenses be stiffer than for cocaine offenses, the Court FINDS that the following factors outweigh the significant weight this Court has determined to give to the sentencing guidelines advisory range (regardless of whether this Court considers the range to be 235 to 293 months [based on judicial fact-finding] or 188 to 235 months [based on jury fact-finding] ).1. The defendant's history and characteristics as set forth above;2. His criminal history category which over states his criminal history and weighs in his favor against the likelihood that he will commit another offense;3. The fact that he withdrew from the conspiracy and led a productive life for one year prior to his arrest in this case weighs in his favor against the likelihood that he will commit another offense; and4. The unjustified disparity in the 100:1 quality ratio for punishment between cocaine base or crack and powder cocaine.
Based on a careful consideration of all the factors listed in 18 U.S.C. § 3553(a), the Court FINDS that a reasonable sentence for this defendant is one hundred and fifty-six (156) months on each count to run concurrently, a sentence that is sufficient, but not greater than necessary, to serve the purpose of sentencing established by the Congress. The Court specifically FINDS that a sentence of 156 months provides substantial and appropriate deterrence to those contemplating this offense, promotes respect for the law and provides just punishment based on the defendant’s conduct.
7th Circuit coverage of restitution
In this recent post, I spotlighted Blakely's applicability to restitution and other non-prison sentences as an issue that merits Supreme Court attention sooner rather than later. Today in US v. Pree, No. 03-1516 (7th Cir. May 20, 2005) (accessible here), the Seventh Circuit had ocassion at the end of a long opinion to review restitution's status post-Blakely. The Pree court reiterates the circuit's prior holding in George (discussed here) that restitution is a civil remedy not governed by Apprendi, Blakely and Booker, and in footnote 20 the court adds:
Other courts of appeals also have held that Apprendi does not apply to orders of restitution. [Cites from the 3d, 6th and 8th Circuits.] However, we acknowledge that "[w]hether restitution is a criminal punishment and whether restitution is subject to Apprendi, Blakely, and Booker are by no means settled questions in courts across the country." Garcia-Castillo, 2005 WL 327698, at *5 n.4 [10th Cir.] (collecting cases).
As detailed in this post, some academic commentators have forcefully argued that Blakely/Booker should be applied to federal restitution. And, in this context, it bears recalling that virtually all lower courts held that Apprendi had no applicability to guidelines schemes until the Supreme Court in Blakely corrected that misunderstanding.
Yet another big sentencing day for the 8th Circuit
The ever-active Eighth Circuit is not taking a casual Friday today: on its opinion page, I count another half-dozen notable criminal dispositions with some sentencing discussion. Aided by the court's official summaries, here is a quick overview of what seem to be the most notable decisions today:
US v. Fogg, No. 04-2723 (8th Cir. May 20, 2005) (available here): Sentence affirmed [based in part on an appeal waiver and approving upward departure], but restitution order vacated and remanded for reconsideration. [PUBLISHED] [Bowman, Author, with M. Arnold and Gruender, Circuit Judges]
US v. Roy, No. 04-2310 (8th Cir. May 20, 2005) (available here): [Among other holdings,] counts of indictment alleging assault on a federal officer and assault with a dangerous and deadly weapon were multiplicitous, and one of the convictions must be vacated; ... defendant failed to meet his burden to show plain error under Pirani and was not entitled to resentencing under Booker; district court did not err in imposing a five-level enhancement under Guidelines Sec. 2A2.2(b)(3)(E). [PUBLISHED] [Wollman, Author, with Lay and Colloton, Circuit Judges]
US v. Velazquez, No. 04-2706 (8th Cir. May 20, 2005) (available here): Evidence was sufficient to support drug and firearm convictions; no error in denying motion in limine; defendant had adequate notice of the prosecution's intent to rely on prior convictions. [PUBLISHED] [Smith, Author, with Loken, Chief Judge, and Riley, Circuit Judge]
US v. Urkevich, No. 04-2244 (8th Cir. May 20, 2005) (available here): Discrepancy between indictment and instruction on carrying, using or possessing a firearm was not fatal and did not materially alter the offense for which defendant was charged; evidence was sufficient to support drug conspiracy and firearm convictions; defendant was not entitled to relief under Blakely or Booker as he could not establish that the district court would have imposed a lesser sentence under the new advisory sentencing scheme. [PUBLISHED] [Riley, Author, with Loken, Chief Judge, and M. Arnold, Circuit Judge]
An assessment of the war on drugs by the RAND Corporation
Thanks to an informed reader, I have just learned that The RAND Corporation a few months ago issued an interesting report entitled "How Goes the 'War on Drugs'? An Assessment of U.S. Drug Problems and Policy." The report, which is overviewed in this research brief and is available in full text here, aspires to present "a concise, accessible, objective view of where the United States has been, now stands, and is going in the future in its long 'war on drugs.'"
Here are some highlights from this press release by RAND concerning the report's interesting findings and conclusions:
The study reviewed evidence for and against the effectiveness, costs and consequences of U.S. drug policies of the past 20 years. It concludes that at different times in the course of a drug epidemic, enforcement, treatment and prevention can all be successfully used to reduce illicit drug use and the crime and violence with which it is associated.
However, the strategies are not equally effective in all stages of a drug use epidemic. For example, law enforcement is most effective in the early stages of a drug epidemic, when relatively fewer suppliers are available and suppressing the supply is easier. In contrast, treatment is more effective in the later stages of a drug use epidemic, when a much larger percentage of ongoing users are drug dependent.
The study suggests that for drugs with mature epidemics such as cocaine, the current allocation of resources for controlling the drug should be redistributed among law enforcement, treatment and prevention to maximize their effectiveness. Most cocaine-control spending is focused on enforcement, but the report suggests that spending more to treat heavy drug users would be more effective.
Among the many interesting aspects of the RAND report is a express pitch, like the pitch I made in this recent post, for embracing what might be called criminal justice federalism:
• Draw strength from cross-state variations in drug policy. The federal government has sought to rein in those few states whose policies have deviated from its own. The government might instead tolerate and seek to learn from state variations that do not seriously undermine the intent of the federal strategy.
A Booker review ... that's a bit off on a key point
Just posted via law.com is this article from the Legal Intelligencer which, reviewing the state of Booker in the circuits, rightly notes that Booker has "had a rippling effect on the lower courts, creating waves of litigation, as criminal defendants at every stage tried to take advantage of it." The main focus of the article is the Third Circuit's recent ruling in Lloyd (discussed here), which declared that Booker was not to be applied retroactively to cases which were final before Jan 12, 2005.
The article's reporting on Lloyd and broader Booker retroactivity realities is basically sound. But the piece stumbles in its discussion of plain error in the circuits when it asserts that "defendants on direct appeal who had failed to raise a Booker argument at the time of their sentencing are routinely winning new sentencing hearings as the appellate courts have ruled that they satisfy the 'plain error' test."
This statement is perhaps an accurate description of life in the Third and Sixth Circuits. But in the First, Fifth, Eighth, Tenth and Eleventh Circuits, defendants subject to plain error review are decidedly not "routinely winning new sentencing hearings." And, in the Second, Seventh and DC Circuits, defendants are only routinely winning Crosby/Paladino remands, not new sentencing hearings. (The Fourth Circuit story is mixed depending on whether the case involved a Sixth Amendment violation below.)
I surmise this piece comes from the Third Circuit, which perhaps explains the error. But it is a telling revelation of the mess that Booker has wrought when even the legal press cannot keep up with the dramatic circuit splits on Booker plain error issues (basics here and here).
Late-night blog roaming for sentencing items
A late-night roam around the blogsphere has unearthed these notable posts on sentencing topics:
- TalkLeft in this post details that news of the extreme drug sentencing provisions in HR 1528 (some background here) has caught the attention of an editorial writer in Sydney, Australia, who comments that the bill "represents the point where the war on drugs has lost its mind, its pious extremism blind to the damage it will do to a society that respects its neighbours."
- On the topic of drug sentencing, Gideon at The Connecticut Law Blog has news in this post that the state's bill to equalize sentences for crack and powdered cocaine is awaiting Governor Rell's signature. I previously discussed this bill in this post touting state insights on criminal justice matters. Gideon also explores in this post the status of mandatory minimum sentences under state law.
- Tom Freeland at Appellate Law & Policy notes a plain error sentencing reversal from the Fifth Circuit in this post, and Happy Fun Lawyer at AL&P has this post about a notable Second Circuit AEDPA ruling (which confirms my sense of the need for a distinct AEDPA blog).
A taste of Tennessee Sour Mash
I detailed in this post that the Tennessee Supreme Court has now refused to rehear its Gomez decision (basics here, problems here), and in this follow-up post I pondered what happens next with the Gomez case and other cases in Tennessee. Helpfully, insightful Tennessee correspondent David Raybin has provided this report from the front lines:
I have learned that the attorneys for the litigants in Gomez will be taking a prompt appeal to the US Supreme Court. I am confident that Tennessee Association of Criminal Defense Lawyers will file an Amicus to the petition. Gomez also presents a plain error issue which the Supreme Court may wish to resolve as well or it may make the case unattractive.
The Gomez issue may not yet be ripe for federal habeas corpus review for [other] pipeline cases because the Court of Criminal Appeals was routinely granting Blakely relief to cases coming before it. Given that the Attorney General believed the statute was flawed, the AG never appealed those cases to the Tennessee Supreme Court. Thus, the universe of potential defendants who could go directly to federal court at this time is rather small. The flood will start with those cases in the Court of Criminal Appeals where the issue has been raised and they must now deny relief.
The other (and in my view) much greater problem is what is to be done at the trial level. It is malpractice to accept any sentence higher than the presumptive minimum because of the near universal belief that Gomez will die in federal court. Judges in some places are now imposing two sentences and some judges are having the jury find the enhancement factors. Chaos. It is unnecessary to speculate about the problems Gomez wrought in Tennessee. It is all too real.
In addition to this interesting report, David also made sure to provide a bit of background on a well known potent potable: "Sour mash, which also is sippin’ whiskey and Tennessee whiskey, is a frequently misunderstood term. Sour mash simply refers to the technique used in the preparation of most, if not all, straight whiskey. The sour mash method makes the yield more efficient. Sour mash got its name because the thin spirit 'beer' remaining had a slightly acidic taste, although the resultant whiskey was anything but sour."
May 19, 2005
Booker, Crawford, Ex Post Facto, oh my...
Thanks to this post over at Appellate Law & Practice, I am channeling Dorothy in expressing my excitement (and trepidation) over the opinion from the First Circuit today in US v. Molina, No. 03-1625 (1st Cir. May 19, 2005) (available here).
Molina provides us with nearly 50 pages of fine prose from Circuit Judge (have-your-dictionary-handy) Bruce Selya. The ground covered, in the words of AL&P, is "a bonanza of Confrontation Clause, Ex Post Facto, and Booker stuff." From a quick read, I see some notable dicta in the Booker and Ex Post sections, though I will have to look up the words "salmagundi," "gallimaufry," and "asseverate" before I can be sure I haven't missed some important nuances.
Who says the law and blawg content isn't populist?!? Happy reading.
Keeping Irons in the fire
Howard Bashman at How Appealing has the news and links here detailing that the Ninth Circuit panel considering the constitutionality of the AEDPA habeas standard in Irons v. Carey has now "issued an order ... requesting supplemental briefing and notifying the Attorney General of the United States that the statute's constitutionality has been called into question." Howard also reports that this order, available here, "contemplates the possibility of panel reargument and also invites interested amici to request leave to file briefs." (I have previously discussed Irons, and its possible impact on capital cases and Blakely habeas litigation, in this post.)
UPDATE: Lyle Denniston at SCOTUSblog now has this informative post on this latest hot Irons development.
The diktats of criminal history and Booker's potential virtue
The Seventh Circuit's decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines' criminal history diktats. It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.
The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges. The legal issue is whether the defendant's prior conviction for fleeing a police officer qualifies as a "crime of violence," which would in turn requiring sentencing as a career offender under USSG § 4B1.1. Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a "crime of violence" had enormous impact on the defendant's fate: the defendant's guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a "crime of violence."
The Rosas court's legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a "crime of violence"). But, tellingly, the court's analysis never includes any consideration or judgment about the factual specifics of the defendant's priors or, more importantly, whether it makes sense for 15 years of a man's life to hinge on a legal debate over whether fleeing qualifies as a "crime of violence."
Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way. No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is "sufficient, but not greater than necessary" to achieve the purposes of punishment and the other goals set forth in 3553(a). Though a judge post-Booker might still opt to follow the guidelines' diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a "crime of violence."
More on constitutional challenges to lethal injection
With thanks to How Appealing for the tip, I see the AP has this informative story about the recent Supreme Court split over whether to grant a stay to a Missouri death row defendant who challenged the state's lethal injection protocol. I detailed the SCOTUS split in this post which queried whether four Justices ready to grant cert. on the constitutionality of lethal injection protocols, and background on legal challenges to lethal injection can be found in this earlier post which discusses a constitutional challenge to lethal injection unfolding in a Kentucky case.
May 18, 2005
What's the next dance step in Tennessee's Blakely waltz?
As detailed in this post, the Tennessee Supreme Court has now refused to rehear its Gomez decision, which declared that Blakely did not raise problems for Tennessee's sentence system even though every litigant involved in the case, including the Tennessee Attorney General, believes Gomez rests on a misunderstanding of Apprendi and Blakely. Though this decision is interesting in itself, the story of Blakely in Tennessee takes on a whole new layer of intrigue when one ponders what happens next.
David Raybin has predicted that the "old Tennessee pre-fix statute will not survive first contact with a federal court." I share that instinct, but I wonder when and how that "first contact with a federal court" will occur. I suspect the defendants in Gomez will petition for cert., but I have to wonder whether SCOTUS want to bother with this case especially now that the state's Task Force-recommended-Booker-style, Blakely fix legislation is about to become law.
Of course, the other obvious way to get these issue before a federal court is through federal habeas, and thus a Tennessee federal district judge (and thereafter the Sixth Circuit) may get to weigh in on these issues through habeas. However, procedural complication and the AEDPA overlay may make that a complicated path for correcting Gomez.
And while these issues and questions unfolds, what happens to cases in the pipeline in Tennessee (where some lower state courts had been applying Blakely to the state's sentencing scheme)? And, thinking outside the box, I wonder if some enterprising Tennessee defendants with on-going cases about to be sentenced might seek to draw on the Supreme Court's recent Dotson decision in order to try to litigate these issue though a § 1983 action in federal court.
Though it is fun to speculate about all these issues, I really feel sympathy for the state prosecutors and defense attorneys in Tennessee who have to sort out these issues "on the ground."
Tough sentences for white-collar offenders
In a number of high-profile cases, white-collar defendants have received below-guideline sentences (e.g., the Enron Nigerian barge defendants and former Governor Rowland and others), and I have pondered in this post whether we might be seeing a pattern of leniency in white-collar cases post-Booker (I also queried in this post whether the federal guidelines may be too tough on white-collar offenders).
But, as detailed below, a number of recent sentencings suggest that not all white-collar offenders are reaping post-Booker breaks:
- This article from Chicago details that a "businessman whose family had been among the prominent supporters of Mayor Richard M. Daley was sentenced Wednesday to almost 10 years in federal prison for defrauding the city and a group of insurance companies."
- This article from New Jersey details that "former Hoboken Mayor Anthony J. Russo was sentenced Tuesday to 30 months in federal prison and fined $30,000 for taking bribes from an accountant and towing contractor to help them get city contracts." The article reveals that this sentence was at the very top of the applicable guideline range.
- This article from Indiana discusses a sentencing last month in which the 62-year-old former CEO [of the now-defunct Monon Corp.], Thomas Rosby, was sentenced to 87 months in federal prison ... for his role in arranging fraudulent loans that led to the company’s forced bankruptcy in October 1996."
Notable death row reprieve request
Thanks to this post at CrimProf Blog, I am pondering how a governor should respond to a death row inmate's request for a reprieve to provide the inmate an opportunity to donate an organ to save his dying sister. According to this AP story, that's the issue facing Indiana Governor Mitch Daniels:
An inmate condemned to die by chemical injection this month is seeking a reprieve at least long enough to donate his liver to his dying sister. Gregory Scott Johnson is scheduled to die May 25 for the 1985 murder of Ruby Hutslar, an 82-year-old woman from Anderson.... Defense attorneys want Gov. Mitch Daniels to grant Johnson a short reprieve that would allow time for medical tests to determine whether the organ is compatible with Johnson's sister....
Johnson told The Indianapolis Star during an interview at the prison this week that he wants to donate his liver in hopes of leaving something positive to society. "'I'm sorry' just doesn't cut it," he said. "All of the same stupid things I've done that I thought wasn't hurting anyone — at that time in my life, I didn't care. I care now, but it's too late." Johnson admits he played a significant role in Hutslar's death but says another man who helped him actually killed her.
Johnson's 48-year-old sister, Deborah Otis, lives in an Anderson nursing home. Michelle Kraus, Johnson's attorney, said his request was not an attempt to delay the execution, saying he cares for his sister. "She is a mother and a grandmother. She has much to live for," Kraus said.
It seems to me that, for anyone truly committed to a "culture of life," this decision should be an easy call. Johnson is only seeking a relatively brief postponement of his execution in order to try to save an innocent life. But for some reason I am not expecting the Schiavo crowd to be pushing new federal legislation to save lives in this case.
Tennessee Supreme Court denies rehearing in Gomez (but legislative fix still in works)!
As detailed here, last month the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme. However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely. Yet, despite the fact that every litigant involved in the case, including the Tennessee Attorney General, petitioned for rehearing in Gomez (see details here and here), today the Tennessee Supreme Court stuck to its guns and denied rehearing.
In its order rejecting rehearing, which can be downloaded below, a majority of the Tennessee Supreme Court asserts:
We remain convinced that Blakely must be read in light of Booker.... The Court harmonized the Federal Sentencing Guidelines with the Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme. We are not persuaded that the differences between the [Tennessee] Reform Act and the post-Booker Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords judges discretion to select a sentence anywhere within a statutory range, even in the absence of enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme in which a state legislature limits judicial discretion by designating the presumptive sentence that must be imposed when a judge finds no enhancement or mitigating factors.
Of course, at issue in Blakely was Washington's sentencing scheme which limited "judicial discretion by designating the presumptive [sentencing range from which a sentence] must be imposed when a judge finds no enhancement or mitigating factors," and that scheme was found to violate the Sixth Amendment when a judge finds facts to go above that presumptive range. In other words, unless Booker essentially overruled a key tenet of Blakely (and footnote 8 which speaks directly to this matter), Gomez still stands on very shaky ground (as detailed more fully here).
Interestingly, David Raybin, who has been integrally involved in many Tennessee Blakely developments, detailed in an e-mail to me that there is even more to the Tennessee Blakely story because of legislative developments:
The Tennessee Senate and House passed the Task Force-recommended-Booker-style, Blakely fix legislation today and it is on its way to the Governor's desk. Given that the legislation was proposed by the Governor's office, it should be signed by Memorial Day. It takes effect immediately upon the Governor's signature. I have drafted an article on the new legislation for the Tennessee Bar Association Journal [which can be downloaded below].
On the same day that the fix passed the legislature, the Tennessee Supreme Court releases its order on the collective petitions to rehear filled by all parties and the Amicus (whom I represent). As for the Opinion itself, my first comment was: "res ipsa loquitur" (And for those who are not up on their Latin: "the thing speaks for itself"). I suggest that the old Tennessee pre-fix statute will not survive first contact with a federal court. More to the point: who will defend it, given that even the Attorney General believes it is flawed. Astounding.
6th Circuit discusses post-Booker appellate review and plea dynamics
The Sixth Circuit today in US v. Davidson, No. 03-6544 (6th Cir. May 18, 2005) (available here) spoke directly to the nature of post-Booker appellate review. In short, more "same as it ever was" for reviewing guidelines calculations:
As we have previously suggested, the sentencing structure set out by the Booker remedial opinion cannot function absent appellate review of a district court's Guidelines calculations. The clear Booker requirement that the district court "consider" the applicable Guidelines range, would otherwise be meaningless. We continue, in reviewing individual Guidelines determinations, to apply the standards of review we applied prior to Booker. Accordingly, for purposes of determining the Guidelines recommendation, we continue to accept a district court’s factual finding that a defendant possessed a firearm during a drug crime unless it is clearly erroneous, but to subject a district court’s finding on a mixed question of law and fact — such as the existence of a substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(5)(B) — to de novo review.
Davidson is also quite interesting because of a bit of sparing within the court about whether the prosecutor's agreement to certain terms in a plea agreement, but then seeming to back away following a contrary PSR, was reason for concern. Judge Moore, writing for the majority, dropped a footnote (footnote 6) to say:
We emphasize that we do not condone the behavior of the Assistant U.S. Attorney ("AUSA") responsible for this case at the district court. The AUSA's behavior was, at a minimum, inconsistent with the spirit of the plea agreement, in which the United States agreed to recommend to the district court that the Firearm Enhancement not be applied against Mrs. Davidson. However, despite this representation, the United States did not object to the Presentence Report ("PSR") prepared in regard to Mrs. Davidson, did not request at sentencing that the district court reconsider the probation office’s recommendation, and did not make any objection after the district court imposed a sentence clearly contrary to the recommendation and stipulation in the plea agreement.... In a situation where the United States had obtained guilty pleas from two defendants only after it had "agree[d] and stipulate[d]," J.A. at 44, R. 71 at 4 (Mrs. Davidson's plea agreement); J.A. at 51, R. 72 at 4 (Mr. Davidson's plea agreement), that Mrs. Davidson should not be assessed the Firearm Enhancement, such acts and omissions fall far below the standard of conduct expected of federal prosecutors.
But Judge Gibbons concurred to clarify that she did not agree with this footnote in Judge Moore's opinion:
Footnote 6 appears to impose a duty on federal prosecutors to reiterate a recommendation in a plea agreement at every possible step in the proceeding, even when the recommendation is inconsistent with the true facts. Ideally, a recommendation that the district court not apply a particular enhancement should be based on an expectation that the court will find that facts supporting the enhancement do not exist. Sometimes, however, the government’s information is imperfect, and either the presentence report or evidence at the sentencing hearing reveals an inconsistency between the true facts and the factual findings necessary to support a decision that an enhancement does not apply. Here, while we do not know what information the parties had when they entered into the plea agreement, we know that both the presentence report and evidence at the sentencing hearing support application of the firearm enhancement to Mrs. Davidson. In this type of situation, a prosecutor's vigorous advocacy of factual findings that do not comport with reality is itself problematic. Moreover, a prosecutor can adhere to a recommendation of a plea agreement without repeating its terms at every opportunity. The district court was of course fully aware of the terms of the plea agreement and was required to make its findings based on the record. All the parties knew this, and the prosecutor had to make a judgment call about an appropriate course of conduct, given the circumstances. I cannot say that the prosecutor here chose wrongly.
Lots of blogsphere Booker news and analysis
Whether populist or not, Appellate Law & Practice and the federal defender blogs, which can all be accessed at this link, do a great job keeping up with new Booker cases. Here are some of the recent posts from those locales with notable Booker news and insights:
- At AL&P, recent posts discuss recent Booker decisions from the First Circuit, and the Fifth Circuit, and the Eleventh Circuit.
- The Third Circuit Blog has this post on recent Booker decision in that locale.
- The Sixth Circuit Blog has this lengthy post providing an analytical summary of the court's approach to Booker pipeline cases.
- The Ninth Circuit Blog in this post provides a thoughtful examination of a recent case dealing with mens rea issues in federal drug prosecutions (not quite Booker, but still of sentencing relevance).
- The Tenth Circuit Blog has this post on recent Booker decision in that locale.