June 25, 2005
Another remarkable sentencing week
Even as we move into the summer months, we are still seeing amazing sentencing developments nearly every week. After a manic Monday of remarkable sentencing developments kicked off the week (and added to the reading list), the debate over mandatory minimum sentencing heated up with AG Gonzales' speech advocating a Booker fix and the amicus filing in the Angelos case. Monday's developments are assembled in this post, and subsequent developments are recapped below:
AG GONZALES' BOOKER SPEECH AND COMMENTARY
- AG Gonzales calls for a Booker fix
- Background on AG Gonzales' proposed Booker fix
- Questions about AG Gonzales' speech advocating a Booker fix
- What about compassionate conservatism in the federal CJ system?
- Further discussion and criticism of Gonzales speech
- Will DOJ make public its Booker data?
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- 2d Circuit approves use of hearsay at sentencing
- 1st Circuit addresses due process/ex post facto issues regarding post-Booker sentences for pre-Booker crimes
- Significant ex post facto ruling from the 8th Circuit
- Great Booker coverage on the defender blogs
SUPREME COURT DEVELOPMENTS AND COMMENTARY
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Happy Birthday, Blakely!
- USSC proposes priorities and requests public comments
- Amicus filing in Angelos mandatory minimum case
- Angelos amicus brief
- Great week-ending sentencing commentary
- So much sentencing news in the papers
- A chance to catch up on great reading
Justice Thomas's notable Booker footnote in Halbert
As detailed here, I had some hope when cert. was granted in Halbert v. Michigan, No. 03-10198 (S. Ct. June 23, 2005) (available here), that sentencing issues might be discussed in conjunction with the High Court's elaboration of the right to counsel. But the opinions in Halbert ultimately had little sentencing discussion, save for one opaque and curious footnote in the dissent by Justice Thomas.
In Halbert, the Justices debated not only whether defendants in Michigan had a general constitutional right to counsel when seeking leave to appeal, but also whether the defendant in this Halbert had waived that right. In the course of responding to assertions by the Halbert majority that the defendant could not waive a right that had not been clearly recognized, Justice Thomas dropped this footnote in his dissent:
FN2. Moreover, the majority's failure to make clear which sources of law are to be considered in deciding whether a right is "no[t] recognized," ante, at 16, and hence nonwaivable, is bound to wreak havoc. For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U.S. 296 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U.S. ---- (2005). The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was "no[t] recognized," and hence that the right was nonwaivable.
Though we should all know better than to read too much from a footnote in a dissent, it would seem that Justice Thomas believes the majority's logic in Halbert provides an additional argument for assailing some federal appeal waivers which defendants entered into before Booker. (Prior coverage of other arguments against federal appeal waivers can be found in posts here and here.)
Lots of recent state Blakely action
Perhaps in honor of Blakely's birthday, the state courts have issued a lot of notable Blakely rulings of late. In addition to the California Supreme Court's big Blakely decision (basics here, commentary here and here), at least two other state Supreme Courts rendered notable Blakely decisions this week, as did a lot intermediate appellate courts in Ohio and Oregon and elsewhere.
The Minnesota Supreme Court issued only its second substantive Blakely decision in State v. Leake, No. A04-57 (Minn. Jun. 23, 2005) (available here), where the court confirmed that Blakely overruled an earlier state decision concerning the imposition of life without parole and also discussed the application of the prior-conviction exception. Meanwhile, the Indiana Supreme Court continued to explain and enhance its Smylie decision concerning Blakely's applicability in Indiana through Mask v. State, No. 49S02-0506-CR-290 (Ind. Jun. 23, 2005) (available here), and Wright v. State, No. 49S02-0506-CR-285 (Ind. Jun. 22, 2005) (available here).
Though I cannot keep up with all the intermediate appellate court state Blakely decisions (and thus encourage readers to spotlight any that appear especially notable), the ruling of an Arizona court in Newkirk v. Nothwehr, 2005 WL 1475392 (Ariz. App. Div. 1 Jun. 23, 2005), did catch my eye. In Newkirk, the defendant, challenging the denial of his request to allow a jury to find a prior conviction, built an interesting (but ultimately unsuccessful) argument for the right to a jury trial on provisions of the Arizona Constitution.
June 24, 2005
Great week-ending sentencing commentary
This week closes with some great sentencing from many sources. As noted here, Prof. Vik Amar on FindLaw has great insights about California Supreme Court's big Blakely decision earlier this week in Black. In addition, these other commentaries are not to be missed:
- As a follow up to this post noting Blakely's birthday, JDB has this poignant reflection at the Infinity Ranch blog on the hopes that Blakely raised and that Booker dashed for the federal sentencing system.
- At Bloomberg.com, Ann Woolner here discusses the Angelos case, commenting that "surely there is some point at which a sentence is so far out of whack with the crime as to be unconstitutional."
- In this column for The Nation, David Feige discusses white-collar offenses and deterrence to reach the conclusion that "it may well be that the conditions of confinement matter far more than the length of the sentence" for white-collar offenders.
- Tung Yin at his blog shares some astute views here to an on-going federal capital case in Vermont.
1st Circuit addresses due process/ex post facto issues regarding post-Booker sentences for pre-Booker crimes
In a week marked by major sentencing developments outside the federal courts — e.g., the California Supreme Court's big Blakely decision (basics here, commentary here and here); AG Gonzales' speech advocating a Booker fix (basics here, commentary here and here and here and here) — the circuits today seem to be doing their best today to take back the sentencing headlines (at least on this blog). Just moments after learning that today Second Circuit upheld the use of hearsay at sentencing in Martinez, I now also see here from Appellate Law & Practice a big Booker ruling from the 1st Circuit, with a particularly important ex post facto conclusion.
The 1st Circuit's work comes in US v. Lata, No. 04-2051 (1st Cir. June 24, 2005) (available here). Judge Boudin wrote the Lata opinion, and here is the court's opening paragraph:
The appeal in this case presents the question whether a defendant who committed a crime and was sentenced prior to United States v. Booker, 125 S. Ct. 738 (2005), can be given a sentence that is within the statutory maximum but higher than the sentence that he would normally have received (absent departures) under the mandatory guideline regime. We conclude, without difficulty, that the ex post facto clause of the Constitution is not offended by this result; and, on the present facts, no due process objection to the higher sentence can be maintained.
As detailed in posts here and here and elsewhere, I have repeatedly questioned whether due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct. I believe Lata, which has an extended discussion of these issues, stands as the strongest statement from a circuit court to date that such increased post-Booker sentences are constitutionally sound. However, the Lata court does pull its punches a bit:
It is unnecessary for the disposition of this case to adopt a flat and final position on due process objections to post-Booker sentences for pre-Booker crimes. Here, we think it is enough to resolve this case that even viewed as of the time Lata committed the crime — post-Apprendi but pre-Blakely — someone in Lata's position could not reasonably be surprised by the sentence he eventually received. Whether or not exactly the same sentence would necessarily have been imposed by departures under the guidelines is necessarily uncertain. But the sentence imposed is not wildly different than a sentence that might well have been imposed under the guidelines for someone with Lata's criminal record and offense-related conduct.
Even under mandatory guidelines, a defendant with a criminal record not fully reflected by criminal history points was always on notice that the top of his guideline range might be exceeded. Lata's pre-sentence report indicated that an upward departure might be warranted because of the character of his criminal record. Nothing in the guidelines flatly forbad the judge from departing based on the fear induced by the threat of the bomb and gun. The result does not violate the due process clause.
We reserve for the future the case, if one ever arises, in which a sentence is imposed for a pre-Booker crime that is higher than any that might realistically have been imagined at the time of the crime or based on factors previously discouraged, prohibited, or not recognized under the guidelines. As we have seen, any prospective guideline range estimated before the crime has been committed is far more contingent and uncertain than may be true on the day of sentencing. And, since post-Booker sentences are open to review for reasonableness, Booker, 125 S. Ct. at 765-66, extreme sentences at the very least will rarely survive ordinary review so as to present the naked due process question.
In addition to this interesting and important discussion of process/ex post facto principles, the Lata case also has some interesting Booker talk, as noted here, in conjunction with the court's decision to remand for resentencing. And, to throw in one last observation about Lata, I found notable (and somewhat surprising) that one of the judges sitting by designation on the First Circuit panel was US District Judge Nancy Gertner, who has tended to be more defendant-friendly in her view of the post-Booker world (as evidenced by opinions noted here and here and here).
2d Circuit approves use of hearsay at sentencing
Thanks to this helpful post at Appellate Law & Practice, I see that the Second Circuit continues to produce notable sentencing rulings this week (some from earlier this week are noted here and here). Of course, with a few more dispositions today available on this official eIGHth Circuit opinion page, the busy beavers on the Eighth Circuit still appear to be the farthest along at clearing the Booker pipeline.
Today's work by the Second Circuit includes interesting rulings in US v. Byrd, No. 04-3607 (2d Cir. June 24, 2005) (available here), concerning the "appropriate standard of proof applicable to a finding that the defendant breached his plea agreement," and in Johnson v. Wright, No. 04-3234 (2d Cir. June 24, 2005) (available here), concerning the standards defining deliberate indifference to a prisoner's medical needs. But the biggest decision from the Second Circuit to celebrate Blakely's birthday involves attorney Jeff Fisher's other big win, Crawford v. Washington.
In US v. Martinez, No. 04-2075 (2d Cir. June 24, 2005) (available here), the Second Circuit holds that "the Sixth Amendment rights of confrontation as elaborated in Crawford v. Washington, 541 U.S. 35 36 (2004), and of jury factfinding discussed in United States v. Booker, 125 S. Ct. 738 (2005), do not bar judicial consideration of hearsay testimony at sentencing proceedings." In support of this conclusion, the Second Circuit relies primarily on the half-century-old Supreme Court decisions of Williams v. Oklahoma, 358 U.S. 576(1959), and Williams v. New York, 337 U.S. 241 (1949). In response to the claim that Crawford and Booker the sentencing equation, the Second Circuit states:
Neither Crawford nor Booker ... addressed the applicability of the right of confrontation to the sentencing context or the admissibility of hearsay testimony at sentencing proceedings. These cases therefore provide no basis to question prior Supreme Court decisions that expressly approved the consideration of out-of-court statements at sentencing.
The court elaborated further with some interesting comments about Booker and due process:
We find it significant, moreover, that judges imposing sentence in accordance with Booker may exercise greater discretion than they could have exercised under the pre-Booker regime. If consideration of hearsay testimony during a sentence proceeding was not prohibited under a mandatory Guidelines regime, there is no logical basis for concluding that it is prohibited under the system of advisory Guidelines established by Booker.
This is not to say, of course, that any and all consideration of hearsay testimony at sentencing proceedings is permissible. The Due Process Clause "is plainly implicated at sentencing," even though it does not require at sentencing "all the procedural safeguards and strict evidentiary limitations of the criminal trial itself." United States v. Fatico, 603 F.2d 1053, 1054 (2d Cir. 1979) (internal quotation marks and citation omitted); see also United States v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000) ("Although the Confrontation Clause does not apply at sentencing, a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information. Due process requires that some minimal indicia of reliability accompany a hearsay statement." (citation and internal quotation marks omitted)). Nevertheless, for reasons explained in the accompanying summary order, we are satisfied that the district court afforded Martinez due process in the sentencing proceeding at issue here.
Will DOJ make public its Booker data?
As discussed in this post from February, at the US Sentencing Commission's first big public hearing on Booker, US Attorney Robert McCampbell noted that the Justice Department "will be collecting data" on post-Booker sentencing. And in AG Alberto Gonzales' speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here, commentary here and here and here and here), Gonzales seemed to reference this collected data in his statement that "the evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences, and a drift toward lesser sentences."
Now that the AG is weighing in on the post-Booker policy debate, it would be especially valuable for policymakers and others if DOJ would make public the sentencing data it is collecting. The US Sentencing Commission has done a great job updating its data on its Booker page, but the federal system would surely benefit from another data-driven perspective on how the post-Booker world is unfolding. DOJ should also make public the way it is collecting data, since I have heard reports that the data-collection forms now being used internally by DOJ may not be ideal.As detailed in this post, US District Judge Gregory Presnell of the Middle District of Florida recently requested that the local US Attorney make available the information DOJ is collecting on post-Booker sentencings. That request, available here, astutely explained why DOJ's data collection "should be transparent and available for public inspection." Judge Presnell's request was rejected in a brief letter, available here, that did close by stating that DOJ is "considering periodically disclosing certain information we are generating from [Booker Sentencing] Reports."
In the wake of the Gonzales speech, now might be a very good time for DOJ to start a program of post-Booker periodic disclosure.
Thoughtful commentary on Black decision
UC Hastings law professor Vikram David Amar now has this terrific (and lengthy) commentary on FindLaw discussing the California Supreme Court's big Blakely decision earlier this week in Black (basics here, commentary here). I won't try to summarize Vik's many insights, but I will highlight his astute closing sentence:
It will be quite interesting to see whether the U.S. Supreme Court feels the need to accept review in yet another one of these cases, assuming Mr. Black files a petition for that Court's review.
Happy Birthday, Blakely!
A year ago today, the Supreme Court handed down its decision in Blakely v. Washington. In my post after first seeing the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems." An on-line search this morning provides support for these predictions: running the search "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database now produces 5511 "hits" (with 2270 from allstates and 3244 from allfeds). The same search in Lexis gets interrupted "because it will return more than 3000 results."
So, on its birthday, what do you get for Blakely, the sentencing case that has everything? Perhaps a debate in the comments about whether the sentencing world is better or worse a year after Blakely. I vote better in part because Blakely (and Booker) have helped stimulate a long overdue national discussion of sentencing law and policy. But I would like to hear other perspectives.
Angelos amicus brief
As first reported in this post, earlier this week an amicus brief, signed by 163 former U.S. attorneys general and retired federal judges and prosecutors, was filed in support of the appeal to the 10th Circuit by Weldon Angelos, the first-time offender sentenced to 55 years' imprisonment for marijuana sales under federal mandatory sentencing statutes. I have now received a copy of this brief, which can be downloaded below. Here are excerpts from the brief's introduction:
This Court is called upon to review the sentence of Weldon Angelos (“Mr. Angelos”), then a twenty-four year old first-time offender who was sentenced to a draconian 55-year mandatory mlnimum term of incarceration for conviction on three criminal counts: possessing — not using or even displaying — a firearm under his clothing whle selling several hundred dollars of marijuana on two occasions and for owning several additional firearms which were discovered after police searched his home....
Amici Curiae, a group consisting of 163 individuals — including four former United States Attorneys General, retired United States Circuit Judges, retired United States District Judges, and former United States Attorneys and other former high ranking United States Department of Justice officials — who bring an expertise in federal criminal law and federal sentencing issues based on hundreds of years of collective experience, respectfully urge this Court to conclude that the 55-year sentence imposed in this case constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. For this reason, Amici Curiae request that this Court reverse the judgment of the District Court and find that the mandatory minimum term to which Angelos was sentenced is unconstitutional.
June 23, 2005
USSC proposes priorities and requests public comments
The US Sentencing Commission on its website today posted here its "Federal Register Notice of proposed priorities and request for public comment." The USSC's homepage explains that as "part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, ... the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2006." The USSC's notice says that "public comment should be received on or before August 15, 2005."
The notice details that, for "the amendment cycle ending May 1, 2006, and possibly continuing into the amendment cycle ending May 1, 2007," the Commission has identified seven tentative priorities. Here, in short form, is the listed tentative priorities: (1) implementation of crime legislation enacted by Congress; (2) continuation of its work on appropriate responses to United States v. Booker, including any appropriate guideline changes; (3) continuation of its policy work regarding immigration offenses; (4) continuation of its work on cocaine sentencing policy; (5) review, and possible amendment, of commentary in Chapter Eight (Organizations) regarding waiver of the attorney-client privilege and work product protections; (6) resolution of a number of circuit conflicts; and (7) review and amendment of pertinent guideline provisions to address structural issues regarding the Sentencing Table.
In addition to this list of tentative priorities, the USSC's notice provides instructions for how the public should provide comments and also has this interesting Booker warning:
While the Commission provides this notice to identify tentative priorities, it recognizes that other factors, most notably changes that may be required as a result of United States v. Booker, 543 U.S. ___ (2005); 125 S.Ct. 738 (2005), as well as the enactment of any legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all policy issues by the statutory deadline of May 1, 2006.
June 23, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Further discussion and criticism of Gonzales speech
I have raised a lot of questions here and here about AG Alberto Gonzales' Tuesday speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here and background here). I am now pleased to see that the media and the blogsphere are discussing and criticizing the speech.
I have already found two potent editorials assailing the Gonzales call for mandatory minimum guidelines:
- This piece from Athens Banner-Herald laments Gonzales' "shrill tone" and "the inherent flaw in imposing one-size-fits-all rules on our courts," while asserting we "must continue to give our judges the freedom to exercise their judgment in assessing every case and handing down proportionate sentences."
- This piece from the Council Bluffs Daily Nonpareil concludes that "the Supreme Court got it right: Federal judges should be free to sentence convicted criminals as they see fit, and they should be subject to reversal if appeals courts find them unreasonable. Sentences should fit the crime, not a politician's preconceived, one-size-fits-all notion."
Relatedly, this article from North Dakota quotes US District Judge Rodney Webb calling Gonzales' use of a few examples of lower sentences "a cheap shot." And this AP story connects the speech to the recent amicus filing in the Angelos mandatory minimum case, noting that only a "day after U.S. Attorney General Alberto Gonzales said too many criminals are getting light sentences, four of his predecessors told a federal court Wednesday that mandatory sentencing laws can result in unconstitutionally long prison terms."
From the blogsphere, Ellen Podgor at White Collar Crime Prof Blog has some very potent comments about the speech which closes with a great quote from James Madison. And the Gonzales speech has also generated a nice debate over at PrawfsBlawg.
More SCOTUS criminal justice rulings
Lyne Denniston at SCOTUSblog has the eary news in this post about the Supreme Court's work today. As he reports, in Halbert v. Michigan (03-10198), the Court ruled "that it is unconstitutional to deny a free lawyer to an individual who has pleaded guilty to a crime and seeks permission to appeal." And in Mayle v. Felix (04-563), the Court ruled, by a 7-2 vote, "that an amended habeas petition cannot avoid the federal habeas one-year filing deadline, when it makes a new claim that is based on facts differing from those in the original pleading." Finally, in Gonzalez v. Crosby (04-6432), another 7-2 ruling in a habeas case, the Court "ruled that that a rule 60-b motion seeking to challenge a District Court ruling on the statute of limitations for filing habeas petitions is not a successive petition, and thus may be decided by the District Court without prior permission from a Circuit Court."
Mayle and Crosby reinforce my view that someone should start an AEDPA blog, and Halbert is effectively summarized in this early AP report. Readers are, of course, encouraged to use the comments to provide insights on these decisions and their broader significance.
I believe that today's rulings essentially clear the Supreme Court's criminal docket for the term (except perhaps for one last habeas case). My gut instinct is that this has generally been a good term for criminal defendants, perhaps even one of the best for defendants during the Rehnquist Court. If anyone has assembled a scorecard on SCOTUS's criminal justice work this Term, I would be eager to see (and post) the details.
June 22, 2005
Amicus filing in Angelos mandatory minimum case
I posted here last week the brief filed in the 10th Circuit by the lawyers for Weldon Angelos, the 25-year-old first-time offender sentenced to 55 years imprisonment for marijuana sales under applicable federal mandatory minimum sentence statutes. Back in November the Angelos case made headlines because Utah District Judge Paul Cassell wrote a lengthy opinion in the Angelos case in which he lamented that he was compelled to impose sentence he considered to be cruel, unusual, and irrational. (More background is here, and commentary here and here.)
Tonight I see news here and here reporting that an amicus brief was filed today in the Angelos case on behalf of "163 former U.S. attorneys general and retired federal judges and prosecutors." The brief urged the 10th Circuit "to vacate the sentence of Weldon H. Angelos, saying it violated the Eighth Amendment ban on cruel and unusual punishment." I will post this amicus brief, which I suspect will be similar to the amicus filing submitted to Judge Cassell, when I can get my hands on a copy.
UPDATE: The amicus brief can now be accessed in this post.
Great Booker coverage on the defender blogs
Especially since I can no longer keep up with all the Booker circuit action, the federal defender blogs (as well as, of course, Appellate Law & Practice and How Appealing) are especially important resources for discussion of and commentary on important Booker rulings. Those blogs are all assembled here, and some recent noteworthy posts include:
- This post from the Second Circuit Blog discussing important dicta in a recent case concerning the scope of the prior conviction exception.
- This post from the Third Circuit Blog on Booker remands in that circuit.
- A series of recent post from the Tenth Circuit Blog on some recent sentencing cases.
- This post from the Defense Newsletter Blog (which covers the 11th Circuit) on a recent disposition of a Booker claim that the Supreme Court GVRed. And, speaking of the 11th Circuit, How Appealing has this news of reversals of probation sentences given to two ex-HealthSouth executives.
Significant ex post facto ruling from the 8th Circuit
Though I could say a lot more about AG Alberto Gonzales' speech advocating a Booker fix (basics here, background here, commentary here and here), I have to get back to the circuit beat because there is a lot transpiring on that front. For example, I have heard that the Fourth Circuit has recently issued orders in some post-Booker GVRed cases asking for supplemental briefs on the application of Hughes, White, and Blick to those cases. In addition, Appellate Law & Practice has the scoop here on two notable (and very long) Second Circuit sentencing decisions, Garcia and Canova, that came down yesterday. I'll post more about these developments later as time permits.
But first I must spotlight what I consider to be a notable ex post facto ruling from the 8th Circuit in US v. Borer, No. 03-2903 (8th Cir. June 22, 2005) (available here). In Borer, the court rejected a government argument that the defendant was ineligible for a three-level acceptance of responsibility reduction under § 3E1.1(b) because the PROTECT Act (which was passed after the defendant's offense) added a government motion requirement for the third-level reduction. And in so doing, the Eighth Circuit had these bold assertions about the application of the Ex Post Facto clause in this setting:
We think it evident that the government's position is inconsistent with the Ex Post Facto Clause. The addition of the motion requirement changes the operation of the guideline to Borer's detriment after his commission of the offense. The PROTECT Act amendment made it materially more difficult for Borer to earn a reduction for acceptance of responsibility by adding a requirement that the government authorize the court to grant a third level reduction. As a result, the statute was "retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, 450 U.S. 24, 30-31 (1981). The amended guideline would result in a substantial disadvantage to Borer because he would receive a longer sentence for the same conduct simply because he did not receive a motion from the government.
And, at the close of this quote, the Borer court provides a long string cite with quotes from relevant Supreme Court rulings.
Though I do not think this holding is ground-breaking, the language caught my eye in part because there is a lot of post-Booker discussions (among the defense bar and on this blog) about the application of ex post facto and due process principles to post-Booker sentencings. And, of course, if there is any effort to apply any part of a post-Booker "fix" retroactively, we will surely see lots and lots of ex post facto litigation.
What about compassionate conservatism in the federal CJ system?
I have already set out this lengthy list of questions concerning AG Alberto Gonzales' speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here and background here). But I have to add one more: isn't there a place for compassionate conservatism in the federal criminal justice system?
Recall that, as detailed here, at Gonzales' confirmation hearing, Republican Senators Sam Brownback and Tom Coburn and Arlen Specter all talked about being smart on crime as well as tough on crime. Gonzales responded that "people who commit violent crimes and are career criminals ... should remain in our prisons," but he also said that "there is a segment of the prison population ... first-time, maybe sometimes second-time offenders who can be rehabilitated." Gonzales further explained, "I think it is not only smart, but I think it's the right thing to do. I think it is part of a compassionate society to give someone another chance."
With those prior comments in mind, I found particularly jarring in Gonzales' speech yesterday that he assailed the sentencing in a tax evasion case from New York in which the sentencing judge apparently concluded "that the defendant's age and the need to take care of his wife ... now justified a lesser sentence." But I suppose I should not be surprised by Gonzales' lack of compassion in that case after federal prosecutors in his Justice Department sought a 215-year sentence (!) for John Rigas, the founder of Adelphia Communications, who is 80-year-old and apparently quite sick.
Of course, there are lots and lots of federal defendants who deserve no compassion whatsoever at sentencing. But what is troubling about Gonzales' proposed Booker fix is that he does not trust federal judges (most of whom, by the way, are Republican appointments) to make reasonable judgments about which defendants may deserve a bit of compassion. Gonzales' proposed "minimum guideline system" apparently would preclude federal judges from ever showing a hint of compassion (even to non-violent, first-offenders) to go below the guidelines, though judges would presumably retain full authority to show the opposite of compassion and impose sentences above the guidelines.
A lot more interesting sentencing news
Though my mind is still racing with questions concerning AG Alberto Gonzales' speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here and background here), I also see a lot of other interesting sentencing stories making headlines:
- As detailed in news reports here and here, "a federal jury on Tuesday recommended the death penalty for a woman convicted of helping her boyfriend kill five people in 1993 in an attempt to thwart a drug investigation." Though many appeals will surely follow, defendant Angela Johnson could be on the path to being the first woman executed by the US government since 1953.
- As discussed in this article, the Second Circuit has an en banc hearing in a set of major felon disenfranchisement cases today. Happy Fun Lawyer at Appellate Law & Practice is covering the case very thoroughly.
- Articles here and here provide move coverage of the California Supreme Court's big Blakely dodge in Black (basics here, commentary here).
Questions about AG Gonzales' speech advocating a Booker fix
I have now been able to read carefully the text of Attorney General Alberto Gonzales' major policy speech in which he advocates a Booker legislative fix in the form of "the construction of a minimum guideline system" (basics here and background here). These are just a few of the questions which leapt to mind as I reviewed the speech:
1. If advisory guidelines are so bad, why did DOJ urge this remedy in post-Blakely litigation? Gonzales says in his speech that the key to achieving "the lowest crime rates in a generation" has been "a set of mandatory sentencing guidelines." He also asserts that "it is inevitable over time that ... shorter sentences and disparities among sentences will occur under a system of advisory guidelines." Though one might debate the particulars, what cannot be debated is that, after Blakely, it was DOJ that was vigorously urging the remedy of advisory guidelines if Blakely was deemed applicable to the federal system.
As I stressed in this post when John Ashcroft assailed advisory guidelines in his closing days, the remedy urged by federal defendants after Blakely (and by Justices Stevens, Scalia and Thomas in their Booker dissents) was to keep mandatory guidelines in full force and simply require all aggravating facts to be proven to a jury or admitted by the defendant. But DOJ fought in every lower federal court and in the Supreme Court for the guidelines to be declared advisory if Blakely was applicable to the federal system (and I am very confident that Justice Breyer's advisory guideline remedy in Booker would not have garnered five votes were it not for DOJ's vigorous and effective advocacy of an advisory guideline remedy).
These realities bring to mind the humorous definition of chutzpah as a boy on trial for murdering his parents who asks for leniency because he is an orphan. Here the chutzpah is that DOJ played a central role in the demise of a mandatory guideline system yet now Gonzales asks for legislation because he claims a mandatory guideline system is needed "to secure a system of tougher, fairer, and greater justice for all."
2. If the old mandatory guidelines were so effective, why the need to construct a new "minimum guideline system"? If DOJ has now concluded it was a mistake to seek an advisory system because the key to fighting crime is "a set of mandatory sentencing guidelines," isn't the simple answer for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker? As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though now aggravating facts triggering longer guideline sentences have to be proven to a jury or admitted by the defendant. The real double chutzpah is that DOJ wants all the benefits of tough, mandatory guidelines but also wants to prevent defendants from having the benefits of the constitutional rights articulated in Apprendi and Blakely.
3. What "other interested parties" helped Gonzales come to the conclusion a Booker fix was needed? Gonzales says he came to the conclusion that the advisory guideline system had to be improved after consulting prosecutors in the field and "reaching out to other interested parties." Who are these "other interested parties" and do they include any judges or others with a neutral perspective on the efficacies of an advisory guideline system? To my knowledge, nearly all "interested parties" other than prosecutors — including the Judicial Conference, the US Sentencing Commission, the ABA, and the Constitution Project — have urged that Booker's advisory guideline system be given time to develop before any legislative fix is seriously considered.
4. Now what? Quite unclear from the Gonzales speech is whether DOJ is formally backing the Booker fix in section 12 of HR 1528 (some background here) or instead has a distinct legislative proposal in the works. (Notably, the supporters of section 12 of HR 1528 in the House claim that it is not meant as a Booker fix.) Of course, it is Congress, not DOJ, which ultimately determines the fate of Booker and any legislative fix. And though some House members have been fiery in their rhetoric about the need for a legislative response to Booker, the Senate has seemed calm (almost to the point of indifference) about Booker.
5. Is the timing of this speech peculiar and worthy of some speculation? The post-Booker federal sentencing landscape had become relatively calm of late, and it is difficult to identify a particular event that clearly would prompt a major shift in DOJ's thinking about Booker. Meanwhile, I cannot help but notice, in recent stories from the Chicago Tribune and the Washington Post, that Gonzales' name is coming up a lot in the Rehnquist replacement discussion even though "many conservative leaders see him as too moderate." Could this speech in some way be part of an effort to show the Right that AG Gonzales is the right man for another job?
Readers with thoughts on any of these questions, or with additional questions about the Gonzales speech, are encouraged to speak up in the comments.
June 21, 2005
Background on AG Gonzales' proposed Booker fix
In coming posts, I will have lots to say (and lots of questions) about Attorney General Alberto Gonzales' major policy speech on Tuesday in which, as detailed here, he advocated Booker legislation fix in the form of "the construction of a minimum guideline system." But before dissecting the speech, I can provide links to early news coverage from the Washington Post, the AP, the New York Times, and Knight Ridder.
It seems the so-called "minimum guideline system" advocated by AG Gonzales is a version of (or variation on) what had been called the Bowman proposal or topless guidelines in the wake of Blakely, and also what has been proposed in section 12 of a drug sentencing bill, known as HR 1528, that surfaced and received subcommittee approval in the House of Representatives in April. Below I have provides links to some of my prior coverage of these federal sentencing proposals:
Post-Blakely discussion of the Bowman proposal (aka topless guidelines)
- The "Bowman Proposal": White Knight or Force of Darkness?
- The brewing battle over the Bowman fix
- Thinking about new federal reform dynamics
- Requiring proof beyond a reasonable doubt in any legislative fix
Post-Booker discussion of the the Booker fix provisions of HR 1528
- Details concerning the brewing Booker fix
- Questions about the brewing Booker fix
- Bowman on the proposed Booker fix
- USSC speaks out against HR 1528
- Still more voices speaking out against brewing Booker fix
- The judges speak out against HR 1528
- The litigation mess argument against HR 1528
AG Gonzales calls for a Booker fix
On Tuesday, in a major policy speech delivered to a conference of the National Center for Victims of Crime, AG Gonzales stated that the "advisory guidelines system we currently have can and must be improved." He closed his speech by saying that he favored "the construction of a minimum guideline system." Gonzales further explained:
Under such a system, the sentencing court would be bound by the guidelines minimum, just as it was before the Booker decision. The guidelines maximum, however, would remain advisory, and the court would be bound to consider it, but not bound to adhere to it, just as it is today under Booker.
A copy of the full text of AG Gonzales' speech today advocating this Booker fix, along with a fact sheet put out by DOJ, can be downloaded below. The speech is also available at this link. I will have lots and lots of commentary on this major development after I have time to unpack.
A chance to catch up on great reading
I am heading on the road again today back to Ohio, and thus off-line for the rest of the day. In addition to providing a much-needed break after yesterday's manic Monday of remarkable sentencing developments, this day off-line provides a chance to catch up on all the great sentencing reading that has piled up in the last few days.
In addition to all the Supreme Court rulings from Monday — from the Supremes in DC and from the California contingent in Black (basics here, commentary here) — I am also eager to read more carefully the trio of great opinions from Judge Adelman (details here) and the latest magnum opus from Judge Gertner (details here). Also worthy of lots of attention are the briefs filed in the Angelos mandatory minimum case from the 10th Circuit (available here) and in the fast-track debate in the SDNY district court (available here). And if you want to listen rather than read, do not forget the big Blakely case argued today in the Indiana Supreme Court , Ryle v. State, which concerns the scope of the prior conviction exception and can be seen on-line here.
So much sentencing news in the papers
Unsurprisingly, after a manic Monday of remarkable sentencing developments, the morning newspapers have lots of stories covering the day's many happennings. Here is just a sample:
- Covering the Rompilla capital ruling from the Supreme Court, here are pieces from the New York Times and a collection of others pieces (thanks to How Appealing), and the Washington Post provides this helpful collection of major SCOTUS death penalty rulings this term.
- Covering the Rigas sentencings, here are pieces from the New York Times, the Wall Street Journal and the Los Angeles Times.
- Covering the California Supreme Court's Black decision, here is piece from the San Francisco Chronicle.
- Covering the decision by SCOTUS to deny cert on Booker plain error in Rodriguez, here is a piece from the Wall Street Journal.
Recapping a manic Monday
Perhaps providing a sign that we are in for another stunning summer, this week started off at a manic pace with sentencing action from all quarters on Monday. Because so much happened, I did not even have time to report that there were notable Booker decisions from the Fourth, Eighth and Eleventh Circuits on Monday. But because I do not think any of the circuit rulings were ground-breaking, these other Monday developments still merit the most attention:
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- Important capital IAC and AEDPA rulings from SCOTUS
- SCOTUS refuses to take on Booker plain error
- Pondering the SCOTUS plain error dodge
- Not now or not ever on Booker plain error?
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- California Supreme Court dodges Blakely
- Booker strikes again (aka Back in Black)
- A great prior conviction test case
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
A great prior conviction test case
I am very glad to see Michael Ausbrook, who does a great job covering state Blakely stories, back in action at INCourts. And, in addition to this strong post on the California Supreme Court decision in Black, Michael highlights in this recent post a big Blakely case to be argued in the Indiana Supreme Court on Tuesday, Ryle v. State, which concerns the scope of the prior conviction exception.
I have spotlighted Ryle before in posts here and here because it seems like an especially good test case for the scope of the "prior conviction" exception. Ryle raises two issues which have divided lower courts: whether (1) juvenile adjudications and (2) being on probation at the time a crime is committed fit within the prior conviction exception. Michael's post provides considerable background on the juvenile adjudications issue, and also provides links to the parties' supplemental briefs. In addition, thanks to Michael, I can provide this link as the place to find on-line a webcast of the Ryle oral argument taking place on Tuesday morning in the Indiana Supreme Court.
June 20, 2005
Three more great Booker decisions from Judge Adelman
As if Monday wasn't exciting enough — with the California Supreme Court's Black decision (basics here, commentary here), the Adelphia sentencings, and all the work (and non-work) of SCOTUS —the day also included three new Booker sentencing decisions by US District Judge Lynn Adelman. Judge Adelman, of course, is responsible for many ground-breaking post-Booker decisions, including Ranum on the weight to be given to the guidelines (basics here, commentary here and here), Galvez-Barrios on fast-track disparity (basics here, commentary here), and Smith on the crack-cocaine disparities (basics here).
Judge Adelman's troika today, all of which can be downloaded below, are US v. Leroy, No. No. 03-CR-289 (D. Wisc. June 20, 2005), US v. Beamon, No. No. 04-CR-55 (D. Wisc. June 20, 2005), and US v. Qualls, No. No. 03-CR-194 (D. Wisc. June 20, 2005). All three are terrific reads. In short form, Leroy expands on Smith and Ranum, the role of courts under advisory guidelines, and the ability of the court to remedy the crack/powder cocaine disparity. Beamon discusses § 3553(e) after Booker. And Qualls discusses the need for incremental punishment and career offender guidelines.
Booker strikes again (aka Back in Black)
I am still taking in the Supreme Court of California's Blakely opinion today in Black (basics here), but Gene Vorobyov at Appellate Law & Practice seems on the right track when he comments in this post that Black "seems spectacularly wrong." Also, Michael Ausbrook at INCourts has a great post here about Black, which astutely observes that there will now be many cert. petition coming from California and that one should be granted so that the Supreme Court can clear up the Blakely-Booker confusion.
One particularly insightful reader wrote to me to express his view that "it looks like the Cal SCt majority has adopted all of the arguments the State and the SG made in Blakely . . . and that the Court rejected!"
That insightful reader is none other that Jeff Fisher, the lawyer who argued Blakely, and he had these further comments about Black:
What's incredible to me about Black is that (like the Tennessee decision in Gomez) every single reason the California SCt advances for upholding its sentencing system was advanced by the State and the SG in Blakely, rebutted in my reply brief, and squarely addressed in Blakely. These courts seem to assume that Booker made certain new factors important in assessing when Apprendi applies to a sentencing system, but the relevance of those very factors was litigated thoroughly in Blakely itself.
Read the "summary of argument" section in the SG's brief in Blakely [provided for download below]. It sounds exactly like the Cal SCt opinion, and I think could be quoted to show the Cal SCt has just adopted the very reasoning rejected in Blakely. My reply brief in Blakely [also provided for download below] goes point-by-point through these arguments.
UPDATE: An interesting AP news reports on Black can be accessed here. This piece ends with a wonderful understatement by Black's attorney, Eileen Kotler: "I do not think they wanted to change the sentencing scheme so they found a way to uphold it," Kotler said.
Rigases get long sentences for Adelphia fraud
As detailed in this Bloomberg report, "John Rigas, the 80-year-old founder of Adelphia Communications Corp., was sentenced to 15 years in prison and his son Timothy, the ex-finance chief, got 20 years, for looting the company and lying about its finances." Background on these cases and the sentencing claims made by the prosecution and defense can be found in this post.
Here are some more interesting snippets from the article, which includes lots of comments from the sentencing made by US District Judge Leonard Sand:
Sand said Rigas had "long ago'' set Adelphia "on a track of lying, of cheating, of defrauding.'' He said he would have sentenced Rigas to a longer term if not for his age and poor health....
Defense attorney Peter Fleming argued that many in Rigas's hometown of Coudersport, Pennsylvania, benefited from his charity. The judge was unmoved. "What he did to Coudersport, he did with assets and by means that were not appropriately his,'' Sand said. "To be a great philanthropist with other people's money is really not very persuasive.''...
John Rigas's sentence doesn't bode well for other CEOs recently found guilty of fraud. WorldCom Inc.'s Bernard Ebbers, who was convicted in March, and Tyco International Ltd.'s L. Dennis Kozlowski, convicted on Friday, are awaiting sentencing.
Not now or not ever on Booker plain error?
The Supreme Court's decision today to reject cert in the Rodriguez case from the Eleventh Circuit concerning Booker plain error (basics here, initial commentary here) has me wondering if the Supreme Court has decided to completely wash its hands of this issue or has just decided that it is not yet the right time (and perhaps that Rodriguez is not yet the right case) to take up Booker plain error. (For more background, here are reports from the AP and Reuters about the Rodriguez case and the cert denial.)
Given that the SG asked for cert in Rodriguez, and that this issue gets less and less important over time as more cases move through the Booker pipeline, my initial reaction is that the Supreme Court just has no interest in taking up this issue at all. But the Court will surely be getting lots and lots of cert petitions from defendants in the tougher plain error circuits, which will provide plenty of opportunities for the Court to take up this issue in some later case. As noted by Lyle Denniston in this post, the Justice Department last week filed its own appeal plain error cert petition in the Sixth Circuit case of U.S. v. Barnett (04-1690), which I discussed here. In Barnett, the SG "recommended that the Court hold the case and dispose of it in light of the Court's action on the Rodriguez appeal. That, however, was before the Court took its surprise action on Monday, refusing to hear Rodriguez."
California Supreme Court dodges Blakely
The Supreme Court of California just released its decision in People v. Black, the big state Blakely case argued back in April. Here's the opening paragraph from Black:
This case addresses the effect of the decisions of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely) and United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738] (Booker) on California's determinate sentencing law. It presents the specific questions whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence. For the reasons discussed below, we conclude that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial.
This is big and very interesting news explained in a 45 pages of opinions that can be accessed here. Commentary on this decision will follow late today once I have a chance to take it all in.
Pondering the SCOTUS plain error dodge
Two month ago, I pondered the future of Booker plain error, and my mind is again racing with today's news that the Supreme Court has refused to take up the Rodriguez case from the Eleventh Circuit (even though the SG and many circuit judges have called for cert. to be granted). Back in February, I was already asking in this post whether the Supreme Court would clean up the Booker plain error mess, and by March I could document in this post the three-way circuit split on the issue (which has only gotten deeper and more nuanced over the last few months). As detailed in this May post, I thought this issue was cert. worthy after the Eighth Circuit's Pirani en banc decision, and I was expecting we would be getting a cert. grant in Rodriguez.
But, as detailed in this post, I can identify reasons why the Supreme Court might reasonably decide to dodge the intricate legal debate over Booker plain error. As time and caseloads march forward, the number of plain error pipeline cases is diminishing. Moreover, in two circuits (the Third and Sixth), most plain error cases are already going back for full resentencings, and in four other circuits (the Second, Seventh, Ninth and DC), most plain error cases result in at least limited remands.
Further, even if the Supreme Court had granted cert. today, we would likely not have a decision until well into 2006; by then, the number of "live" Booker plain error cases might be quite small. And, as detailed in this post, the Supreme Court has no shortage of other critical Blakely/Booker issues to address that are of much greater long-term importance to state and federal sentencing systems (e.g., the status and scope of the prior conviction exception, Booker and Blakely and Apprendi retroactivity, Blakely's applicability to judicial determinations of non-prison sentences or consecutive sentences).
As I have said before, one might view the SCOTUS plain error debate as an interesting test case for the true importance of national sentencing uniformity relative to other goals and interests. Federal defendants are, because of the different circuit plain error rules, clearly receiving unequal justice in the wake of Booker. But, though the consequences of unequal justice may be quite significant for individual defendants, the consequences may not be so profound for the entire system to merit Supreme Court correction. Of course, the Booker remedial majority extolled the goal of federal sentencing uniformity, and it's hard time see why SCOTUS would dodge Booker plain error if it truly believes such uniformity is of paramount importance. But, perhaps now that SCOTUS really sees the many messes it's made made with Blakely and Booker, the Court may now realize that uniformity is always an elusive goal that ought not be pursued without concern for other institutional interests.
Important capital IAC and AEDPA rulings from SCOTUS
Though Lyle Denniston at SCOTUSblog details here that we are still awaiting the Supreme Court's biggest decisions, a few of the big remaining criminal justice cases were handed down today. Specifically, thanks to this post at How Appealing, I see that the Court has issued opinions concerning ineffective assistance of counsel in the capital case of Rompilla v. Beard, No. 04-5462 (syllabus here and full opinion here) and concerning statutes of limitation in the habeas case of Dodd v. United States, No. 04-5286 (syllabus here and full opinion here).
Both Rompilla and Dodd are 5-4 decisions with "traditional" liberal/conservative splits on issues of great import for criminal justice administration. Rompilla seems like a big win for defendants, and Dodd seems like a big a loss; I encourage readers to use the comments to help me fully appreciate which ruling is likely to be of the greatest import and impact. (Since both cases have AEDPA wrinkles, I continue to hope someone will take up my recommendation in this post to start an AEDPA blog.)
Last but not least, the criminal justice work of the Supreme Court is never complete these days without at least a few more Booker-inspired GVRs. This morning I count a five such GVRs on this order list.
SCOTUS refuses to take on Booker plain error
SCOTUSblog and How Appealing are always the places to go for all the information on today's big day at the Supreme Court. And, as detailed in this post by Lyle Denniston at SCOTUSblog, there is already big news for sentencing nuts, as this morning the Supreme Court refused to take up Booker plain error in the Rodriguez case from the 11th Circuit. This development is surprising because the SG has called for cert. to be granted (details here and also here), and the three-way circuit split on this major Booker pipeline issue really cries out to be resolved by the Supreme Court (background here and here).
More news and decisions will be coming this morning from the Supreme Court, and I will cover any important sentencing angles in later posts.
June 19, 2005
Big Supreme Court week ahead
According to the folks at SCOTUSblog, the US Supreme Court will be issuing opinions on both Monday and Thursday this week. Howard Bashman at How Appealing does a great job here detailing the 17 argued cases still pending, a number of which include habeas issues and a few of which could speak to a range of sentencing issues.
Equally exciting, we may hear on Monday whether SCOTUS will take up Booker plain error in the Rodriguez case. Since the SG has called for cert. to be granted (details here and also here), I am certainly expecting to hear that the Supreme Court will jump in to resolve the three-way circuit split on this major Booker pipeline issue.
And certainly not to be overlooked, as detailed here, we are supposed to be getting on Monday a decision from the Supreme Court of California in People v. Black, the big state Blakely case argued back in April. Since Blakely has made a major mess in California for a year now, I am very interested to see how Black tackles Blakely in California.
Interesting district court perspective on jury factfinding
In a recent decision in US v. Schuler, 2005 WL 1412956 (D. Wyo. June 16, 2005), US District Judge Clarence Brimmer explained his view that jury factfinding for sentencing purposes is still permissible in the wake of Booker. In Schuler, the court, in a post-Booker trial, had the jury make "specific findings on the special verdict form regarding facts that may affect sentencing." The defendant, in post-trial motions, claimed, inter alia, that the "sentencing enhancements included on the special verdict form were unduly prejudicial." In the course of rejecting this claim, Judge Brimmer opined on post-Booker sentencing factfinding:
[N]owhere in the Booker decision does it state that sentencing factors cannot be pleaded and proven to the jury. In fact, the Booker Court explicitly stated just the opposite. As the Tenth Circuit stated, "In Booker, the Court extended the logic of Blakely to the Federal Sentencing Guidelines, holding that the Sixth Amendment requires that '[a]ny fact (other than a prior conviction) ··· necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.'" United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005) (quoting Booker, 125 S.Ct. at 756).
However, as is now well-known, the Booker Court also made it constitutional for judges to establish the sentencing factors by a preponderance of the evidence. Booker, 125 S.Ct. at 756-64. This was accomplished by removing those parts of the Sentencing Reform Act which made the Guidelines mandatory. Id. at 756-57. According to Defendant, this ruling mandates that judges, and judges only, decide the sentencing factors. Defendant, however, misreads Booker and attempts to stretch the holding to an illogical conclusion. This Court is of the opinion that it is up to the District Court's discretion as how to establish the factual basis for the sentencing factors. Thus, a District Court may either allow the jury to find sentencing factors beyond a reasonable doubt or under Booker and the new sentencing regime, a District Court may also, within the bounds of the Constitution, find the sentencing factors by a preponderance of the evidence on its own accord.