June 18, 2005
Dispatches from federal sentencing courts
Friday is sentencing day in many federal courtrooms, which means Saturday morning brings interesting reports of federal sentencings in the papers. Here are a few that caught my eye this morning:
- This article from Texas reports on a within-guideline sentence for a former police commissioner convicted of fraud.
- This article from North Carolina reports on a 10-year sentence given to a man who sold computers over the Internet but failed to deliver.
- And this commentary from Tennessee discusses last week's sentencing of a former football booster who bribed a high school coach to send a promising player to Alabama. As detailed in this article, the booster on Monday received a below-guideline sentence of six months' imprisonment.
June 17, 2005
Blakely news from California to close the week
I returned from another day of Carolina sun to learn there is big Blakely news brewing in another locale with lots of sun. According to this notice, the Supreme Court of California will be releasing on Monday its decision in People v. Black, the big state Blakely case argued back in April. Here's the description of the issues to be addressed in Black:
(1) What effect do the decisions in Blakely v. Washington (2004) __ U.S. __, 124 S.Ct. 2531 and United States v. Booker (2005) __ U.S. __, 125 S.Ct. 738 have on the validity of defendant’s upper term sentence? (2) What effect do those decisions have on the trial court’s imposition of consecutive sentences?
Sixth Circuit on procedures and reasonableness
The Sixth Circuit has closed its week with an interesting sentencing decision in US v. Meeker, No. 03-1873 (6th Cir. June 17, 2005) (available here). Meeker involves a defendant who "employed a fraudulent investment scheme to bilk 76 people and two small businesses out of nearly $3.8 million during an eight-year period," and after "pleading guilty, Meeker was sentenced to 84 months in prison and ordered to pay $3,770,445.24 in restitution."
Meeker ultimately receives a plain error remand, but the Sixth Circuit addresses a number of non-Booker procedural issues concerning notice and also speaks of upward departures and reasonableness in its disposition. Many passages in Meeker are quite interesting, especially the court's discussion of sentences in comparable white-collar cases in the Sixth Circuit and elsewhere.
Washington Supreme Court declares Blakely not retroactive
As detailed in this article, on Thursday the Washington Supreme Court concluded in State v. Evans, No. 74851-9 (Wash. June 16, 2005) that "neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced." The Court's unanimous ruling can be accessed at this link, and a brief concurrence by Justice Sanders can be accessed at this link.
The decision in Evans covers now familiar retroactivity ground, relying heavily on Schriro and otherwise rejecting arguments, including a claim based on state law, which might provide a basis for giving some retroactive application to Blakely. And Justice Sanders' one paragraph concurrence makes this observation about the current state of retroactive affairs:
As a matter of logic and principle, I find it difficult to accept one's constitutional right to a jury trial on sentencing factors may be abridged, without remedy, when the issue is first raised based on new case law in the context of a personal restraint petition. But a slim majority (5-4) of the United States Supreme Court in Schriro v. Summerlin, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), seems to say exactly that. What can I do but concur in the decision of our majority?
Case review from the defender blogs
The federal defender blogs have a number of recent posts covering a number of recent Booker rulings of note:
- The Second Circuit Blog here discusses the Second Circuit's recent Fruchter ruling on forfeitures and Booker (which I previously discussed in this post).
- The Third Circuit Blog here notes the Third Circuit's recent Hill ruling on alternative sentences and Booker (which I previously noted in this post).
- The Ninth Circuit Blog here and the PRACDL Blog here discuss Judge Gertner's recent Malouf decision on burdens of proof (which I previously discussed in this post).
- The Tenth Circuit Blog discusses here and here two Tenth Circuit cases applying its tough plain error standards.
June 16, 2005
SG asks for cert. in 6th Circuit plain error case
I received today, and provide for download below, a copy of the cert. petition that the Solicitor General has filed in US v. Barnett, the Sixth Circuit case that established a loose plain error standard which has led to many Booker remands in that circuit. Here is the SG's assertion of reasons for granting the petition in Barnett:
The questions presented in this case concern the application of the plain-error rule, Fed. R. Crim. P. 52(b), to sentences imposed under a mandatory application of the Guidelines before this Court's decision in Booker. Essentially the same questions are presented in Rodriguez v. United States, No. 04-1148 (filed Feb. 23, 2005). The United States has filed a brief in Rodriguez acquiescing in certiorari in light of the multi-circuit conflict on the proper analysis of plain Booker error.
In this case, with respect to the third prong of the plain-error standard, the Sixth Circuit concluded that imposition of a sentence on the premise that the Guidelines are mandatory is presumptively prejudicial. The court did not require, as several other circuits do, that a defendant carry his burden to show prejudice by establishing a reasonable probability that the district court would have imposed a lower sentence if it had treated the Guidelines as advisory. With respect to the fourth prong, the court concluded that the fact that the law had changed since a defendant’s sentencing is sufficient to establish that the error affected the fairness, integrity, and public reputation of judicial proceedings, without any inquiry into whether the sentence that was imposed was itself unjust or unreasonable. Both of the Sixth Circuit's conclusions conflict with decisions of other courts of appeals, as detailed in the government’s brief in Rodriguez.
This case does not involve a constitutional sentencing error under the Booker merits holding, while Rodriguez does involve such an error. While some courts of appeals have drawn a distinction in the plain-error analysis to be applied to constitutional and nonconstitutional Booker error, the two scenarios involve fundamentally similar considerations, and this Court’s disposition of Rodriguez is thus likely to affect the correct resolution of this case. Accordingly, the petition for a writ of certiorari should be held pending the Court's disposition of Rodriguez.
Cianci sentence unchanged
As detailed in this article, US District Chief Judge Ernest Torres "declined to change the 64-month prison term former that [Providence] Mayor Vincent A. Cianci Jr. is serving after his racketeering conviction in the Operation Plunder Dome corruption case." In this prior post, I expressed concern that the First Circuit seemed to cut Cianci a plain error break when it remanded his case for resentencing under Booker, but today's decision seems to make the remand ultimately inconsequential. Here are notable snippets from the news report linked above:
In resentencing Cianci today, Torres adopted the reasoning behind the guidelines, saying they had produced a reasonable punishment for Cianci's crime.... Torres also rejected arguments from prosecutors that Cianci's sentence should be increased to 71 months because he has not accepted responsibility for his crime. Torres said that had already been factored into the original sentence.
Fascinating fight over fast-track
I find fascinating the post-Booker debate over fast-track programs and sentencing disparities, which has already triggered fascinating opinions from Judge Adelman and Judge Cassell and Judge Presnell and others. I was thus pleased to receive an e-mail, accompanied by set of filings, from a public defender reporting that this issue is being briefed before SDNY Judge Louis Kaplan. (Judge Kaplan previously decided in US v. Bonnet-Grullon, 53 F. Supp.2d 430, 435 (S.D.N.Y. 1999), that the disparities created by fast-track programs were unwarranted, but he concluded that Second Circuit precedent precluded a departure based on such disparities.)
The Government in its filing, which is available below (in a very big pdf file), raises a number of interesting arguments in an effort to dissuade Judge Kaplan from mitigating a sentence based on fast-track realities. These arguments include claims that (1) Congress' approval of fast-track in the PROTECT Act constitutes a finding that the disparities are "warranted," and (2) that variances on the basis of these disparities would improperly invade prosecutorial discretion. The Government also claims that a variance on the basis of these disparities would itself lead to unwarranted disparities, since many other judges have rejected that argument.
In addition to making these interesting arguments, the government's filing also includes a wealth of infortmation about fast-track programs nationwide. And, also available for download below, is the the letter-brief filed by defendant's counsel which responds to the government's claims.
June 16, 2005 in Booker and Fanfan Commentary, Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Drug sentencing developments on the legislative front
Though today my mind (and time) will again be focused on the links, a few recent law items concerning drug sentencing have my attention before I head out to the course:
- From the NY Times, this editorial from Wednesday addresses the prospect for still equalizing crack/powder cocaine sentences in Connecticut.
- From TalkLeft, this post discusses US Representative John Conyers recent call for saner drug sentencing polices. That call, which appears impacted by this recent legislative briefing on "The Girlfriend Problem", gives particularly attention to women offenders. In this press release, Conyers says he has "founded the Sentencing, Incarceration, and Public Safety Caucus [which he hopes will provide] a forum in which viable sentencing policy can be discussed and strategies for implementation can be identified."
Judge Gertner on drug statute and burden of proof
While I spent Wednesday enjoying Carolina golf, it appears that the circuit courts were also taking a bit of a Booker break (which was well-deserved after Tuesday's Booker circuit mania). But, joyfully, the ever dynamic Mass US District Judge Nancy Gertner brought some Booker excitement from the district courts through her opinion in US v. Malouf, No. 03-cr-10298 (D. Mass. June 14, 2005). As usual, Judge Gertner covers so much ground that her Malouf opinion defies summary, but I can note the decision is especially strong on interpreting § 841 charges and applying an enhanced burden of proof. Here is Judge Gertner's "teaser" in Malouf:
[T]he sentencing of Michael Malouf raises the following questions: (1) Do the drug quantities outlined in 21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is required and the standard of proof is beyond a reasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court's rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit’s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?
In addition to reading Malouf for answers to these questions, anyone interested in reviewing more broadly some of the modern works of Sentencing Hall of Fame Judge Gertner should explore:
- Judge Gertner speaks on acquitted conduct
- Judge Gertner speaks on Booker!
- Judge Gertner on Apprendi, Ring, and Blakely in capital setting
- Read all about it... (especially severability)
June 15, 2005
Angelos challenging severe mandatory sentence in the 10th Circuit
Last fall, in a remarkable ruling, Utah District Judge Paul Cassell in the Angelos case lamented, but felt compelled to impose, a 55-year mandatory federal sentence on a first-time 25-year-old offender who sold marijuana (background here, commentary here and here). Judge Cassell's decision made a number of strong arguments against this sentence, and Weldon Angelos' lawyers, in a brief filed today, have drawn dynamically from Judge Cassell's opinion in arguing now to the 10th Circuit that Angelos' sentence should not be allowed to stand.
I was sent a copy of the Angelos appeal brief filed today in the 10th Circuit, and it is a terrifically interesting read and includes a number of astute arguments. The brief, which runs over 100 total pages and is available for download below, has this introductory summary:
Even though the District Court deemed a 55-year mandatory minimum sentence for Mr. Angelos to be cruel, unusual, and irrational, it still felt bound to impose this otherwise unconstitutional punishment. After completing an analysis that found all of the factors establishing an Eight Amendment violation under the Solem-Harmelin test, the District Court nonetheless determined that it was constrained from reaching the ultimate conclusion of unconstitutionality. This was in error, as the single precedent relied upon in upholding the sentence is easily distinguishable from the present case, it has been effectively overruled or narrowed by subsequent rulings, and today it is inconsistent with evolving standards of decency. The District Court also repeatedly found that the relevant sentencing scheme produced an irrational classification in violation of equal protection principles embodied in the due process clause of the Fifth Amendment — but again, it still upheld an effective life sentence for Mr. Angelos. The District Court was mistaken in this conclusion, however, by providing undue deference to an irrational legislative scheme that implicates the judicial branch's core duty of criminal sentencing and entails incomparable consequences for the individual defendant. Moreover, the sentence was not only unconstitutional, but the District Court could have avoided imposing this punishment through appropriate statutory construction.
June 15, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Second Circuit deems Blakely/Booker inapplicable to forfeitures
In perhaps the biggest decision of a big day in the circuits, on Tuesday the Second Circuit in US v. Fruchter, No. 02-1422 (2d Cir. June 14, 2005) (available here), rejected a Blakely/Booker claim lodged against a "forfeiture amount [that] was based in part on facts found by the district judge by a preponderance of the evidence." Though noting that the defendant's "argument has a certain surface appeal," the Second Circuit concluded it should not extend Blakely/Booker to forfeitures:
Blakely and Booker prohibit a judicial increase in punishment beyond a previously specified range; in criminal forfeiture, there is no such previously specified range. A judge cannot exceed his constitutional authority by imposing a punishment beyond the statutory maximum if there is no statutory maximum. Criminal forfeiture is, simply put, a different animal from determinate sentencing. In sum, Braun's Sixth Amendment argument must fail.
We do not read Booker and Blakely to require proof beyond a reasonable doubt in indeterminate punishment schemes, such as RICO forfeiture. And, in any event, Libretti remains the determinative decision. Accordingly, the district court did not err when it applied a preponderance standard to the determination of Braun's forfeiture amount.
First Circuit: "No sentencing hearing for you!"
The brief opinion by the First Circuit Tuesday in US v. Cabrera, No. 03-1890 (1st Cir. June 14, 2005) (available here) had me thinking about the Soup Nazi from the famed Seinfeld episode. In Cabrera, through an unpublished per curiam opinion, the First Circuit quickly dispatches a claim for an evidentiary hearing with the judicial equivalent of the decree, "No sentencing procedure for you!" Here is the Cabrera court's work:
First, the appellant claims that the district court abused its discretion in refusing to hold an evidentiary hearing at sentencing. We do not agree: evidentiary hearings at sentencing are the exception, not the rule. A party seeking such a hearing "must carry a formidable burden of persuasion." US v. McAndrews, 12 F.3d 273, 280 (1st Cir. 1993).
In this case, the appellant could have put forth a different version of the disputed point (drug quantity) by affidavit. He did not do so. Given that omission, the court had considerable latitude to decide that the appellant had not satisfied his entry-level burden of showing that material facts were genuinely in dispute. "A district court need not grant an evidentiary hearing . . . merely because a defendant's hopes spring eternal or because a defendant wishes to mount a fishing expedition." Id.
Tuesday's Booker mania in the circuits
While I spent a day in transit, the circuit courts were going crazy with notable Booker dispositions. A quick tour this evening reveals significant sentencing decisions Tuesday from the First, Second, Third, Fourth, Fifth, Seventh, Eighth and Tenth Circuits! I think the decisions from the First and Second merit their own posts, but first I have assembled the major decisions with a short-hand description of their import:
From the First Circuit, US v. Cabrera, No. 03-1890 (1st Cir. June 14, 2005) (available here) quickly addresses sentencing hearings and a role enhancement on the way to a Booker remand.
From the Second Circuit, US v. Fruchter, No. 02-1422 (2d Cir. June 14, 2005) (available here) addresses at length jury trial rights and burdens of proof for criminal forfeitures.
From the Third Circuit, US v. Hill, No. 04-3904 (3d Cir. June 14, 2005) (available here) finds a Booker error harmless when the district court announced an identical alternative sentence (which is big news in a circuit otherwise remanded all sentences on Booker grounds).
From the Fourth Circuit, US v. Ebersole, No. 03-4847 (4th Cir. June 14, 2005) (available here)addresses a position of trust enhancement in the course of a Booker remand.
From the Fifth Circuit, US v. Lewis, No. 04-10102 (5th Cir. June 14, 2005) (available here) finds plain error not satisfied in a case GVRed by the Supreme Court.
From the Seventh Circuit, US v. Stewart, No. 03-2675 (7th Cir. June 14, 2005) (available here) affirms a sentence with an upward departure over a Booker claim, though Judge Williams dissents to state that a limited remand would have been the proper disposition.
From the Eighth and Tenth Circuit, there were a total of four sentences affirmed on plain error grounds; interestingly, both Eighth Circuit cases relied on the third prong of the plain error standard, while both Tenth Circuit cases relied on the fourth prong.
June 14, 2005
Because the US Open beckons, with my Dad living only about an hour from Pinehurst, my priorities for the week are going to shift from law to links. Blogging, especially during the daytime golf hours, will be light through Father's Day, though I should be able in the evenings to report on any major sentencing developments.
But, even as I focus on golf, my inner law geek cannot be suppressed. I am taking this great Columbia Law Review issue with me for bedtime reading, and I fear I will end up blogging here more than I really should. For fellow law geeks, here is a wrap up of recent posts since this review last week:
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- The joys of Justice Breyer
- A quick set of SCOTUS highlights
- More than a few noteworthy SCOTUS criminal justice rulings
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- More insights on the recent Bush pardons
- Blakely/Booker case cites top 5000
- Applying Apprendi to juvenile bind-over
- Adelphia executives to be sentenced next week
- An update, and insights, on Blakely in Ohio
- Ineffective sentencing advice from 5th Circuit
- Notable sentencing decisions from the 6th Circuit
June 13, 2005
Adelphia executives to be sentenced next week
Because I now do not have to worry about how Blakely's impact in California could affect Michael Jachson's sentencing, I have time to note another high-profile case making headlines. As discussed by Peter Henning at the White Collar Crime Prof Blog in this post, another interesting chapter in the prosecution and sentencing of white-collar offenders will unfold next week in New York when US District Judge Leonard Sand sentences Adelphia Communications Corp. founder John Rigas and his son Timothy Rigas, who were convicted last summer of participating in a massive corporate-looting and accounting-fraud scandal. For more background on this case and the prosecutors' request for 215 years(!) in prison for the Rigases, check of this Bloomberg News story and this Wall Street Journal article about the case and upcoming sentencing.
Peter rightly comments that a "215-year term of imprisonment is simply ludicrous," and he also faults defense counsel for seeking home confinement or a six-month prison sentence given that the "fraud at Adelphia ... caused the company to collapse while the Rigas family lined its pockets." Peter astutely wonders "whether such extreme requests are really helpful to the clients of either side," though I am inclined to be especially critical of the prosecutors' recommendation.
Do the prosecutors genuinely believe that 215 years is a just sentence for John Rigas, an 80-year-old man who "had triple-bypass heart surgery in 1999 and has bladder cancer"? Even accepting the prosecutors' contention that the Adelphia fraud "stands among the most serious economic crimes ever committed," I am still troubled by the notion that prosecutors are comfortable representing that imprisonment for 215 years is a sentence "sufficient but not greater than necessary" to serve the purposes of punishment (especially since the "Rigases already have agreed to forfeit assets valued at hundreds of millions of dollars to compensate victims of the fraud").
An update, and insights, on Blakely in Ohio
I have done many posts on the status of Blakely in Ohio, in part because Ohio's sentencing laws and practices make the state a Blakely bellwether (background here and here), and in part because there have been a number of interesting twists and turns, as detailed here and here, as these Blakely issues slowly work their way up to the Ohio Supreme Court.
Thanks to helpful readers, I can now report that the Ohio Supreme Court has scheduled, as noted here, two Blakely cases before it, State v. Foster, 2004-1568, and State v. Quinones, 2004-1771, for oral argument on July 26, 2005. I have also learned that these oral arguments can be watched on-line next month here at the Ohio Supreme Court's website.
Though we all have to wait still another six weeks for these Ohio Blakely arguments, I can in the meantime share one of the briefs in the case. Available for download below is the "Brief of Amicus Curiae Ohio Association of Criminal Defense Lawyers In Support of Appellee Jason Quinones." It provides a wonderful primer on Ohio's sentencing structure and on the potentially profound impact of Blakely in the Buckeye State.
Ineffective sentencing advice from 5th Circuit
Though the busy Eighth Circuit has the pipeline still whooshing along with three more Booker dispositions today (available on this official opinion page), catching my eye this afternoon is a decision coming from the Fifth Circuit (per Judge Prado) in US v. Herrera, No. 04-50633 (5th Cir. June 10, 2005) (available here). Herrerra concerns a defendant's claim that trial counsel was constitutionally ineffective because he allegedly misrepresented the maximum exposure the defendant faced under the sentencing guidelines if convicted.
Though I won't speculate about how the Herrara decision might affect Judge Prado's draft prospects, I will speculate that language from Judge Prado's Herrara opinion may be drafted by many defendants claiming they got bad sentencing advice from their counsel. Here is some of the Herrara court's explanation for why an remand for an evidentiary hearing on the defendant's IAC claim was required:
One of the most important duties of an attorney representing a criminal defendant is advising the defendant about whether he should plead guilty. An attorney fulfills this obligation by informing the defendant about the relevant circumstances and the likely consequences of a plea. Apprising a defendant about his exposure under the sentencing guidelines is necessarily part of this process. A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial. Failing to properly advise the defendant of the maximum sentence that he could receive falls below the objective standard required by Strickland....
An attorney who underestimates his client's sentencing exposure by 27 months performs deficiently because he does not provide his client with the information needed to make an informed decision about accepting a plea offer or going to trial. Not only would the attorney's assistance be deficient under these circumstances, a 27-month increase in a sentence constitutes prejudice under the second prong of Strickland.
The joys of Justice Breyer
As discussed in this SCOTUS review post, I am inclined to let others in the blogsphere dissect the majority and dissenting opinions in Miller-El. But I cannot resist giving Justice Breyer's fascinating Miller-El concurrence a bit of a shout-out here.
Justice Breyer's concurrence reads like a mini law review article building to his conclusion that "it necessary to reconsider Batson's test and the peremptory challenge system as a whole." The opinion — which cites more than a dozen law review articles and a range of other interesting sources (including the website of a "trial consulting firm advertis[ing] a new jury-selection technology") — highlights that you can take Stephen Breyer out of the academy, but you can't take the academic out of Stephen Breyer.
As he builds his anti-peremptory case, I was particularly intrigued by Justice Breyer's closing assertions that "peremptory challenges betray the jury's democratic origins and undermine its representative function" and that "peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government." Slip op. at 7-8. Silly me, all this time I have been thinking it was the anti-jury remedy that Justice Breyer engineered in Booker which was designed to "betray the jury's democratic origins and undermine its representative function" while also contributing to "public cynicism about ... its role in American government."
A quick set of SCOTUS highlights
All of today's Supreme Court decisions are now available on-line via SCOTUSblog here and How Appealing here. I have now had a chance to give Austin, Stumpf and Miller-El very quick reads, and thus I can share a quick set of summaries and reactions.
The unanimous Austin decision (per Justice Kennedy), concerning what process is due before a prisoner is transferred to a supermax prison, reaches two important conclusions: (1) the defendant had a protected liberty interest, and (2) Ohio's new transfer procedures provided sufficient process respecting that interest. Both aspects of Austin should be significant in prisoner due process litigation, though I found the decision's most notable passage to be this stark discussion of the State's interest in supermax transfers:
Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State's interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls.
The Stumpf decision, which reversed the Sixth Circuit's reversal of a capital conviction, includes a very interesting remand concerning whether the defendant's capital sentence should still stand. Though the majority opinion (per Justice O'Connor) deftly punts this issue back to the lower courts, two brief and interesting concurring opinions by Justice Souter (which Justice Ginsburg joined) and by Justice Thomas (which Justice Scalia joined) providing dueling perspectives on what might transpire in the next round of litigation in this case.
Finally, I suspect the majority opinion by Justice Souter and the dissent by Justice Thomas in Miller-El will generate lots of blog discussion elsewhere. But, in a separate post, I will soon share a few thoughts on Justice Breyer's fascinating concurrence.