June 7, 2005
Judge Presnell on fast-track disparity
With all the recent discussions of appellate decisions (Booker and otherwise), I have been hankering for some notable district court decisions, since the real Booker action takes place on a daily basis in the district courts. Today, the always notable Judge Gregory Presnell, who has already secured a place in my Sentencing Hall of Fame, was kind enough to scratch my district court itch through his decision in US v. Delgado, No. 05-cr-30 (M.D. Fla. June 7, 2005).
Delgado is a brief decision (which can be downloaded below) that first addresses a guideline calculation issue that Judge Presnell calls "the type of mechanistic application of arbitrary sentencing Guidelines which leads to inequitable and patently unreasonable results." But the most far-reaching aspect of Delgado, and the feature that will lead to a certain appeal to the Eleventh Circuit under DOJ's post-Booker appellate plans, is Judge Presnell's decision to address fast-track disparity:
Unfortunately (for Delgado), this district has no fast track program. If he had been arrested in Arizona, he would be eligible for a 4-level reduction. But, having made it to Florida to find work, he is subject to a much harsher sentence. Recognizing this disparity, two of my fellow judges have granted 4-level departures on this basis. United States v. Villalobos, 6:04-CR-206- Orl-28JGG (M.D. Fla. Apr. 18, 2005)(Antoon, J.) (oral sentencing judgment); United States v. Maldonado-Sanchez, 8:03-CR-371-T-30TGW (M.D. Fla. Jan. 30, 2004) (Moody, J.) (endorsed order). I see no reason to hold otherwise. Accordingly, the Court will exercise its discretion to reduce Delgado's sentence by the equivalent of a 4-level departure in recognition of this sentencing disparity.
The Constitution Project releases principles for sentencing reform
After nearly a year of post-Blakely work, The Constitution Project and its Sentencing Initiative's bipartisan, blue-ribbon committee has today, as detailed here, "released a set of guiding principles for reform of criminal sentencing systems in the United States." The principles, which run a merciful two pages and can be accessed at this link, were unveiled at a press conference hosted by the Heritage Foundation and featuring the committee's co-chairs, former Attorney General Edwin Meese III and former Deputy Attorney General Phillip Heymann. Notably, the statement of principles also includes a statement of "several serious deficiencies" in "the federal sentencing guidelines as applied prior to United States v. Booker."
A separate brief introduction to the principles, which can be accessed here, provides some background on the Sentencing Initiative and also this teaser of productions still in the works:
The Committee's primary objective was to seek consensus on some of the fundamental elements of a sentencing system that achieves both appropriate punishment and crime control. These "Principles for the Design and Reform of Sentencing Systems" are the first step in the Committee's work. The Committee plans also to release a background report on these principles, to be followed by specific recommendations for a post-Booker federal sentencing scheme.
The principles all look astute and sound to me, though I would contend that the Sentencing Reform Act that Congress passed in 1984 reflects all these principles. Indeed, I argued at length in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999), that the SRA is an astute and sound piece of legislation, but that federal sentencing went astray because Congress, the US Sentencing Commission and even federal judges did a poor job effectuating the SRA's core principles in their subsequent sentencing work.
In other words, the federal experience over the last two decades shows that the devil is really in the details. Though a statement of principles, especially from this impressive group, is powerful, I hope that future work from the Sentencing Initiative will provide a lot more specifics and especially address how the modern politics of sentencing (especially in the federal system) can be recast to enhance the chance that this broad principles will be effectuated over time as a sentencing system evolves.
A view that Ameline is not so sublime
Though I like the Ninth Circuit's Ameline case as a facilitator of rhyming post titles, Steven Kalar over at the Ninth Circuit Blog is not too keen on the substance of Ameline's approach to Booker plain error (basics here, commentary here). In this post, Steven complains about the Ninth Circuit's decision to adopt "the Second Circuit's economic, expedient, and arguably unconstitutional 'quick look' procedure for Booker pipeline cases."
In an interesting part of an interesting post, Steven urges defense attorneys to contest "any district court 'quick look' done outside of the presence of the defendant, based on a defendant's structural right to allocution." He notes that "[a]lthough the allocution issue was pressed aggressively at oral argument, the Ninth entirely avoids the issue entirely in its en banc decision." Steven says to look "for upcoming sample briefing and discussion of this challenge in the 9th Circuit blog and the ND Cal FPD web page in the upcoming weeks." (Notably, the ND Cal FPD website already has a number of sample Booker and Shepard memos and briefs, and a lot of other materials, available at this briefbank page.)
5th Circuit discusses Booker resentencings
On Monday, the Fifth Circuit had an opportunity in US v. Scroggins, No. 03-30481 (5th Cir. June 6, 2005) (available here) to discuss the nature of resentencings under Booker. Though the case has a complicated history and though the Fifth Circuit's opinion is somewhat opaque, Scroggins is notable for its discussion of a number of important Booker resentencing issues.
First, Scroggins rejects the defendant's contention that due process/ex post facto principles restrict application of the Booker remedy and thereby requires that resentencings be based only on Blakely-compliant facts. But then Scroggins also rejects the prosecution's contention that certain guideline enhancements that had been affirmed on appeal pre-Booker could not now be reconsidered by the district court. Here are selections from Scroggins's account of what should now transpire at resentencing:
The district court may, should it deem it appropriate, reconsider its determinations that Scroggins was a leader or organizer and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determination under an advisory, non-mandatory, guidelines system....
We hold that, under the particular circumstances of this case, the district court may also, in its discretion, hear and consider evidence as to Scroggins's role in the offense under section 3B1.1 of the Guidelines and whether he obstructed justice under section 3C1.1 of the Guidelines. The court may also hear evidence bearing on whether or not — notwithstanding that the Guidelines (and pertinent Sentencing Commission policy statements) must be considered and taken into account — a non-guideline sentence would be more appropriate in light of the other factors and considerations set out in Justice Breyer's Booker opinion.
A quick sentencing perspective on a possible new Justice
With fitting fanfare from other bloggers here and here, the fine folks at SCOTUSblog now have gone public with The Supreme Court Nomination Blog. The SCOTUSNom blog aspires "to provide comprehensive, objective coverage of the Supreme Court nomination process." It is already a very impressive effort (and the real action hasn't even started). If (when?) there is a SCOTUS vacancy this summer, the legal blogsphere will likely reach a whole new buzz level, and I expect the SCOTUSNom blog will be at the center of all the action.
Whenever there is a SCOTUS vacancy, I will provide a sentencing perspective on all the new Justice talk. Indeed, I can start providing that perspective now. Recall that 5-4 votes produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. Both Chief Justice Rehnquist and Justice O'Connor, the two Justices considered most likely to retire, are key votes supporting these limits on the reach of the Apprendi-Blakely rule. If (when?) President Bush were to nominate replacement Justices in the "Scalia-Thomas" mold, the future of Almendarez-Torres and Harris would seem to be even shakier.
Of course, Justices Scalia and Thomas did split their votes in both Almendarez-Torres and Harris, although Justice Thomas has now essentially recanted his vote in Almendarez-Torres and Justice Scalia has never explained his vote in Harris. So, even the votes of the current Justices on the big sentencing issues are subject to uncertainty and debate; I am sure the same will be true for any and every potential nominee. Should be a fun summer for Court fans.
The latest news on Blakely in Tennessee
Attorney David Raybin, who has been integrally involved in many Tennessee Blakely developments, sent me tonight the latest news on his state's Blakely drama. The big recent development is that on Tuesday, June 7, Tennessee's Governor is scheduled to sign "Blakely fix" legislation — even though, as detailed here and here, the Tennessee Supreme Court has reached the (seemingly erroneous) conclusion that the state's current sentencing laws are not broken.
As detailed more fully in David Raybin's report, which can be downloaded below, Tennessee's "Blakely fix" legislation serves to "Booker-ize" the state's sentencing scheme. That is, the legislation converts Tennessee's mandatory sentencing regulations into advisory guidelines that state judges must now consider, but are no longer required to follow. I believe Tennessee is the only state to date to adopt legislatively a Booker advisory guidelines approach to deal with Blakely issues, although other states like Alaska and Minnesota have in smaller ways provided judges with more sentencing discretion through Blakely fix legislation. (A now-slightly-dated review of the state of state Blakely fixes and high court rulings is available at this post.)
June 6, 2005
Raich commentary galore
The blogsphere is, unsurprisingly, buzzing with analysis and commentary on the Supreme Court's decision today in Raich (basics here). There is already a week's worth of interesting commentary from many heavy-hitters over at SCOTUSblog, and certainly The Volokh Conspiracy is living up to Orin's promise of lots of Raich-blogging.
Not to be overlooked, and of special interest for folks interested in sentencing topics, Mike over at Crime & Federalism has created this great mega-post of his early Raich analysis, which gives particular attention to the intersection of federalism and criminal justice concerns. Other posts on Raich at Crime & Federalism are also must-reads.
Since all these bright lights have Raich well-covered, I am disinclined to add further to the deluge of Raich words (though I must note with amusement's Justice Stevens' comical reference, late in the Court's opinion, to marijuana as an "extraordinarily popular substance"). But I am inclined to spotlight and link below some pre-Raich posts in which I have explored various federalism and sentencing intersections:
- Reasons for rooting for criminal justice federalism
- Criminal justice, constitutional law, federalism and hot button issues
- Apprendi, Blakely and federalism
- Blakely, federalism, retroactivity and pragmatism
Rehnquist's capital legacy
The Washington Post's Charles Lane, who last week gave us this interesting piece about the death penalty in Germany, today has this strong piece exploring the legacy of Chief Justice Rehnquist in the arena of capital punishment. Here's a sample:
[O]ne clear legacy of the Rehnquist court is its contribution to accelerating the pace of executions in the United States. The Rehnquist court, in tandem with Congress, took some key steps during the 1980s and 1990s to reduce time-consuming death row appeals. These appeals had generally taken the form of petitions in federal court for writs of habeas corpus, based on alleged constitutional defects in a particular defendant's trial.
Partly as a result, the number of executions in the United States reached a modern annual peak of 98 in 1999 — before declining to last year's total of 59.
8th Circuit is at it again
Reinforcing my observations here about the divergent pace of Booker appeals in different circuits, I see on this official opinion page that the ever-active Eighth Circuit has released another large bunch of sentencing rulings today. From a quick scan of the official summaries, I do not think much new ground is broken in this batch. But, because I have 70-plus pages of Raich to read, I am pretty sure I won't get through all of the Eighth Circuit's latest Booker wisdom, and I am also sure that I need readers' help to spot any important jurisprudential needles in the Booker haystacks that the Eighth Circuit is now producing on a daily basis.
A result in Raich and, of course, Booker GVRs
As always, SCOTUSblog is the go-to place for news and commentary on today's work by the Supreme Court, and How Appealing is the go-to place for links to media coverage. As detailed in this post by Lyle Denniston at SCOTUSblog, the biggest criminal justice news today is that the Court in Raich ruled 6-3 "that Congress had the authority to make it a crime to grow and use marijuana purely for personal medical purposes when recommended by a doctor [and thus] overturned a Ninth Circuit ruling that the federal Controlled Substances Act of 1970 exceeded Congress' Commerce Clause power when applied to medical marijuana used under California law." Justice Stevens wrote the opinion for the Court in Raich, and Justice Scalia concurred in the judgment and wrote an opinion. Justice O'Connor wrote the principal dissent, joined by the Chief Justice and Justice Thomas, and Justice Thomas also wrote a separate dissent.
And, of course, what would be a big day at SCOTUS without more Booker-inspired GVRs? I count a dozen more Booker GVRs on this order list, which I believe takes the total to somewhere around 750.
UPDATE: SCOTUSblog in this post has links to the four Raich opinions, and Orin Kerr is already promising lots of Raich commentary over at The Volokh Conspiracy. Mike at Crime & Federalism here notes that "Supreme Court experts had predicted a 9-0 or 8-1 victory for the government, so in a sense, this is a victory for enumerated powers advocates and social justice." Mike also makes the trenchant comment that "Justice Stevens and the other liberals on the Court have continually overlooked the fact that the federal criminal justice system falls disparately upon blacks."
BETTER UPDATE: In response to a very sensible comment, here is a link to the full Raich opinion (which, in case anyone is counting, clocks in at 79 total pages and thus is still 45 pages shorter than all the Booker opinions).
June 5, 2005
DOJ's post-Booker litigation policies and plans
I learned so much from my all-too-brief San Antonio trip to talk to federal defenders at the National Seminar for Federal Defenders, but perhaps of greatest moment was what I heard about the Justice Department's litigation policies and plans. The DOJ details recounted below all come from hearsay reports; but since hearsay is often good enough for federal prosecutors at sentencing, I think it is good enough for me to report on what federal prosecutors are now doing about sentencing.
First, concerning initial sentencings, I heard a report that line prosecutors have generally been instructed (formally? informally?) to seek only within-guideline sentences. (I also heard, however, that some prosecutors in some districts in some cases have requested above-guideline sentences.) Given that due process/ex post facto principles may place limits on increasing a post-Booker sentence based on pre-Booker conduct (background/links here), it seems wise for DOJ to generally urge within-guideline sentences for crimes committed before Booker. But I wonder if this approach will change when sentencings involved only post-Booker criminal conduct.
Second, concerning sentencing appeals, I heard that DOJ official Bill Mercer stated at the recent big Booker event in San Francisco (details here) that there were five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter. This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness.
It is quite possible these hearsay reports are a bit off, and I encourage anyone in the know to make any needed clarifications in the comments.
Doozy DC dicta on Booker
Friday was a big day in the circuits, and I have already discussed Booker developments in the Eighth and Ninth Circuits, a big Blakely ruling in the First Circuit, and a big Apprendi habeas ruling in the Second Circuit. But also making noise on Friday was the DC Circuit (which has been perhaps the quietest Booker circuit to date). And the noisiest part of US v. Price, No. 03-3088 (DC Cir. June 3, 2005) (available here) is some of the dicta from Judge Henderson in her partial concurrence.
In Price, the majority concluded that a sentencing reversal and remand was necessary because "the District Court committed error by: (1) denying Price's request for a third-level reduction for acceptance of responsibility when, under the plain language of the Guidelines, Price was entitled to such a reduction; and (2) including one of the two Maryland convictions in the calculation of Price's criminal history score, when Price clearly disputed that conviction and the Government did not sustain its burden of proof in establishing the conviction." These rulings and the Price court's account of Booker make for interesting reading.
But what makes Price really stand out are the comments from Judge Henderson in her partial concurrence about what can happen upon remand and about the nature of post-Booker sentencing. Here's a sample:
Under the new sentencing regime, and on this record, I believe it would be reasonable for the sentencing court on remand to decline to consider awarding Price any credit for accepting responsibility and to re-impose, if not increase, the sentence vacated herein.... Given that Price’s public criminal record reveals a man determined to burnish his criminal credentials and at society's expense — two factors appropriate for consideration on resentencing, see 18 U.S.C. § 3553(a)(1) & (2)(C) — I believe the sentencing court could reasonably decline to lessen his punishment in any way, including by considering his alleged acceptance of responsibility....
As to the two Maryland convictions, I do not agree that, on remand, the government must "meet its burden under [our pre-Booker precedents].... The reason such pin-point accuracy was necessary, however, was that the prior conviction had to constitute a "crime of violence" in order to be used in computing the defendant's offense level. But "offense levels," "adjustments," "departures" and all of the other Guidelines argot has been jettisoned by Booker. We now operate in a "back to the future" sentencing world when, pre-Guidelines, all that our Circuit required of the government in this regard was that it submit "some verification," — that is, any "evidence of a sufficiently reliable caliber" — to support the information that it supplied the sentencing court and that the defendant challenged.
Interesting blogsphere sentencing items
I see a number interesting sentencing-related items on other blogs that merit note:
- TalkLeft spotlights here the push in North Carolina to reform the administration of the death penalty in that state.
- How Appealing here has links to articles discussing the recent release from confinement of Leroy Hendricks, who was at the center of the Supreme Court's 1997 ruling Kansas v. Hendricks about involuntary commitment for sex offenders.
- Orin Kerr at the at The Volokh Conspiracy here makes some interesting points about an interesting Washington Post piece about the death penalty in Germany.