June 21, 2005
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.