July 12, 2005
Happy Booker half-birthday!
Though not quite as exciting as celebrating Blakely's birthday, I cannot help but note that today marks the six-month anniversary of the Supreme Court's decision in Booker making the federal guidelines advisory. As I noted yesterday in this post, I am hoping the US Sentencing Commission, which today should be wrapping up the National Sentencing Policy Institute in Washington DC, might honor the day by releasing updated post-Booker data on this page.
One way Booker fans awaiting new data might celebrate Booker's half-birthday is by looking back at some of the initial Booker commentaries linked in this post — along with the hundreds of comments from readers (which were often substantial, always insightful, and sometimes truly brilliant) — that raised important questions about the meaning of the decision right after Booker was handed down. It is amazing, and perhaps depressing but not really surprising, that very few (none?) of the big questions Booker raises have been effectively resolved six months later.
What should be done about Sensenbrenner's letter?
Thanks to Howard at How Appealing, I see this interesting item from The Hill reporting that "Democrats yesterday were considering a response to a news report that House Judiciary Chairman James Sensenbrenner (R-Wis.) chastised the 7th U.S. Circuit Court of Appeals in Chicago for giving a drug courier what he considered to be a light sentence." The background on Sensenbrenner's actions and his startling five-page missive to the Chief Judge of the Seventh Circuit are detailed in this fascinating front page article from Sunday's Chicago Tribune, which I discussed in this post.
The Hill story indicates that an "approach Democrats were considering was to ask the ethics committee ... to review the letter." Interestingly, a commentor here asks whether Sensenbrenner's letter might qualify as an "ex parte communication that would subject a lawyer to discipline by the state bar as well."
Another round on Levy from the 11th Circuit
The Eleventh Circuit started the Booker day early with yet another opinion in the Levy case (previously discussed here and here). In Levy, the court continues to refuse to consider a Blakely/Booker claim that was not timely raised in the appellant's initial brief (which was filed before Blakely came along), but raised after Blakely was decided. Despite two prior opinions, a subsequent Supreme Court GVR for further consideration in light of Booker forced the Eleventh Circuit to explain again through US v. Levy, No. 01-17133 (11th Cir. July 12, 2005) (available here), why it refuses to even consider the defendant's Blakely/Booker claim.
I believe that most of the other circuits are considering Blakely/Booker claims in pipeline cases even when the claim was not raised in the appellant's initial brief (although a reader has now confirmed for me that the Fifth Circuit is taking the same basic approach as the Eleventh). Some might have expected the Supreme Court's GVR of Levy to have led the Eleventh Circuit to consider the appellant's Blakely/Booker claim. (As a lawyer said in an e-mail to me: "I can't see any way to interpret the Supreme Court GVR as meaning anything other than, 'yes, we hear you and understand that you were refusing to apply Booker to this case, but we're telling you to do so.'") But the Eleventh Circuit is sticking to its original refusal to consider the claim. I suspect a cert. petition might follow to give the Supreme Court one more look at the Levy apple, though I am not about to predict whether SCOTUS might take another bite.
UPDATE: Another lawyer writes in to suggest a different possible interpretation of the Supreme Court's GVR in Levy:
Here's an alternative [way to understand the Levy GVR]: "Oh look, here is a cert petition... and it raises a Booker claim... and the date of the court of appeals decision is prior to June 24, 2004 ... well, that's easy, send it back... where's the sunscreen? I have a plane to catch." I doubt the Court takes a closer look than that at any of the 600+ petitions raising Booker claims that they have GVRd.
Meanwhile, attorney David Oscar Markus discusses Levy in this post at his new blog.
July 11, 2005
All about Apprendi
Though I often talk of Blakely as the earthquake case which shook the foundations of structure sentencing reform, this recent article is a fitting reminder that the Apprendi decision really started the sentencing tremors. The article takes stock of Apprendi's impact and has this clever opening: "The most influential lawmaker to emerge from South Jersey in recent years arguably has not been a governor, senator or member of the House. It's a citizen who appealed his sentencing for a crime — Charles C. Apprendi Jr."
Among the interesting tidbits to be found in this article is a claim by Charles Apprendi's defense lawyer that the Apprendi decision has already been cited in nearly 30,000 cases and thus is "the third most-cited case in all of American law, behind only the court's 1973 ruling in Roe vs. Wade, ... and the 1966 case of Miranda v. Arizona." Also, the article states that Charles Apprendi ultimately served only about 1/3 of his prison term before being released to a halfway house, and that he is now eligible for parole and may "soon may be a free man."
SCOTUS delays Virginia execution
Not long after I finished this post speculating about the future of the Supreme Court's capital sentencing jurisprudence, we get this interesting news from Lyle Denniston over at SCOTUSblog that the Court "blocked the scheduled execution Monday night of a Virginia death row inmate, in a case that seeks to raise basic issues about a state's obligation to preserve DNA evidence for possible use in challenging a criminal conviction in post-conviction review." TalkLeft was all over this case here earlier today.
Interestingly, as Lyle notes, the defendant's "appeal has drawn the support of the National Association of Criminal Defense Lawyers and the Innocence Project [and his] petition was filed by attorneys at Kirkland and Ellis, led by [former Solicitor General] Kenneth W. Starr." A lot more detail about the case and Starr's involvement can be found in this front-page Washington Post article from this past March.
UPDATE: This Washington Post report provides the latest news on the case and the stay granted by the Supreme Court.
Will O'Connor's replacement shift capital jurisprudence?
In recent posts, I have spotlighted the impact of the Supreme Court's heightened scrutiny in capital cases lately, and I have also discussed Justice O'Connor's capital sentencing legacy. Today, over at the SCONo blog in this recent post, Tom Goldstein covers related ground in noting that SCOTUS "has before it for next Term four cases involving capital sentencing that the Court could use to turn in the direction of still greater deference to the states' administration of the death penalty." Especially in light of some of the interesting capital sentencing histories of "short-listers" like Alberto Gonzales and Edith Jones, it will be interesting to see if capital sentencing jurisprudence might become a significant part of the public debate after President Bush nominates a replacement for Justice O'Connor.
(Of course, as I have suggested before here and here, I think the biggest sentencing story in the wake of Justice O'Connor's retirement concerns the fate and future of the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. But I seriously doubt this jurisprudence will become a central part of the public dialogue in the way capital sentencing could.)
Interesting 4th Circuit ruling on right to counsel
Today in US v. Taylor, No. 04-4104 (4th Cir. July 11, 2005) (available here), the Fourth Circuit addressed whether a criminal defendant has "a federal constitutional right to effective assistance of counsel with regard to a post-conviction, post-direct appeal motion for reduction of sentence made by the government pursuant to Federal Rule of Criminal Procedure 35(b)." In Taylor, the Fourth Circuit panel "answer[s] this question in the negative." That is, the Fourth Circuit concludes, "neither the Constitution's equal protection guarantees nor due process guarantees provide criminal defendants a right to effective assistance of counsel with respect to a motion by the government pursuant to Rule 35(b)."
Beyond is core holding (and some notable due process talk), Taylor provides an interesting window into the often overlooked world of post-sentence Rule 35(b) motions by the government for a sentence reduction based on the defendant providing substantial assistance.
More than a sperm whale's worth of relevant conduct
Today in US v. Garcia, No. 04-40963 (5th Cir. July 11, 2005) (available here), the Fifth Circuit, despite applying its tough plain error standard, vacated and remanded a sentence on Booker grounds. That fact alone (as well as the court's sensible dodge of an ex post facto argument) makes the case notable for legal reasons. But the decision really caught my eye because the facts indicated that the "district court calculated Garcia's base offense level based on relevant conduct involving 48,651.7 kilograms[!] of marijuana."
For those metrically challenged, 48,651.7 kilograms converts to over 107,000 pounds (or more than 53 tons) of marijuana. To provide a frame of reference, according to this entry in the whale encyclopedia, the typical sperm whale only weighs 45 tons. The extreme facts of Garcia cry out for some bad pot jokes — e.g., "... and you should have seen how many bags of potato chips the defendant stole for the munchies." Much better jokes from readers, with liberal references to the Grateful Dead or Reefer Madness (or even Raich), are highly encouraged in the comments.
Making mid-season assessments
Though others are surely gearing up for more SCOTUS mania this week, the two big events on my weekly planner are (1) the MLB All-Star Game in Detroit this Tuesday, and (2) an expected release of updated post-Booker data from the US Sentencing Commission (to appear on this page, I suspect) in conjunction with the National Sentencing Policy Institute run by the USSC and FJC on Monday and Tuesday in Washington DC (background here). Both events mark interesting half-way points: in the baseball universe, writers can assess the season at its symbolic midpoint; in the Booker universe, tomorrow just happens to mark the six-month anniversary of the Supreme Court's decision making the federal guidelines advisory.
Interestingly, I recall that last year I was analogizing the MLB All-Star Game to the line-up of stellar witnesses scheduled to testify before the Senate Judiciary Committee, which conducted a major hearing only weeks after Blakely was handed down (nostalgia here and here and here). In contrast, this year we are now a full six months out from the Booker ruling with no serious Senate discussion of a possible Booker fix — though, of course, the House and AG Gonzales have been talking up a Booker fix (background here).
Especially with the Senate now fixated on SCOTUS transition(s), I doubt we will see any serious federal legislative developments in the sentencing arena at least until the Fall. But, then again, a number of summer developments — ranging from the forthcoming new Booker data to the uncertain future of AG Gonzales and DOJ (discussed in this interesting Legal Times article) — could quickly shift the post-Booker universe.
So much sentencing news to review
Scrambling just to keep up with the sentencing news and SCOTUS rumor-mongering, I have not had a chance to compile a review post since this effort more than two weeks ago. But this weekend allowed for some catching up: I have recapped in prior posts recent circuit court Booker rulings and recent state court Blakely rulings. And, as detailed below, there have been a lot of other sentencing developments worth reviewing from the last two weeks:
SCOTUS DEVELOPMENTS AND COMMENTARY
- Initial end-of-Term reflections on criminal justice and sentencing
- More death and habeas from SCOTUS
- The impact of SCOTUS's heightened scrutiny in capital cases
- Capital ruling and Booker GVRs from SCOTUS
SCOTUS RETIREMENT(S) COMMENTARY
- Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
- Considering O'Connor's capital sentencing legacy
- A preview of O'Connor's replacement?
- CJ Rehnquist out, too? Whither (or wither) Harris, Almendarez-Torres (and Booker)?
CONGRESSIONAL DEVELOPMENTS AND COMMENTARY
- Sentencing from the halls of Congress
- House hearing on death penalty and habeas bills
- Talking points for the post-Booker world
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- NACDL releases report on "Gonzales Cases"
- Barnett receives lower sentence after remand
- The evolution of white-collar sentencing
- Talking points for the post-Booker world
- Lil' Kim gets more than a lil' prison time
- Litigating in a post-Booker world
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Notable ruling on constitutionality of lethal injection
- Celebrating liberty, Blakely-style
- Honoring moms at sentencing
- More on the (medical) costs of long sentences
July 10, 2005
States of Blakely excitement
I have now had a chance to read quickly all of the important Blakely opinions handed down by the Arizona Supreme Court on Friday (basics here). Though the particulars are of greatest interest to folks in Arizona, the rulings reveal yet again how much important Blakely work is being done in the state courts and reinforce my belief, expressed in this post, that the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year.
If you get as excited as I do about Blakely in the states, not to be missed is next month's 2005 Conference of the National Association of Sentencing Commissions, which is taking place in Washington DC on August 7-9. The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and as detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too). You can register for this exciting conference via this link.
And, to help everyone catch up on the most recent developments, below I have linked to some recent state Blakely posts:
- Arizona Supreme Court clears its Blakely docket
- Judicial federalism: diverse state high court Blakely rulings
- Problems in Indiana with advisory fix
- Blakely and jury trial rights getting serious respect in NC
- Resources for those in the Black (California's Blakely decision)
- Big Blakely rulings from the ends of the Union (rulings from Maine and Hawaii)
Talking points for the post-Booker world
At the conclusion of a panel on federal sentencing after Booker at the Sixth Circuit Judicial Conference that I participated in last month, James G. Carr, the Chief Judge of the US District Court for the Northern District of Ohio, rose from the audience to share a number of great insights about how judges and policy-makers should look at the post-Booker world. Chief Judge Carr was kind enough to write up a version of his "Post-Booker Talking Points" and gave me blog posting permission. (Also, an expanded version of Chief Judge Carr's insights will be published in a forthcoming issues of the Federal Sentencing Reporter.)
Given the news of Representative Sensenbrenner's eagerness to micro-manage sentencing outcomes from the halls of Congress, Chief Judge Carr's talking points about post-Booker sentencing are especially timely and should be must-reads for everyone in all three branches of the federal government.
July 10, 2005 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack
Barnett receives lower sentence after remand
After a bit of a rocky start handling Booker plain error, the Sixth Circuit in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (discussed here), officially settled on the circuit's "presumed prejudice" approach (which seems to me to be the soundest of the three divergent Booker plain error standards). This past week I got word that Yervin Barnett was re-sentenced and received 235 months' imprisonment (the low end of the applicable guidelines range) instead of the originally imposed 265 months (the middle of the range). In the words of the person who sent me this news: "Looks like the Sixth Circuit was correct in remanding due to the possibility of a lower sentence."
Besides the fact that Yervin Barnett ultimately got a lower sentence, the Barnett case is worth remembering because I believe the government's petition for cert. is still pending, and thus Barnett could conceivably still serve as a vehicle for the Supreme Court to consider these circuit-splitting plain error issues. But, given that SCOTUS has already denied cert. in the Rodriguez case from the 11th Circuit (basics here, commentary here and here) and now that Yervin Barnett has actually been resentenced to a lower term, I would be very surprised by anything but a cert. denied in Barnett.
Recapping recent circuit rulings
Supreme Court transitions and rumors are, not surprisingly, garnering much attention these days; even this blog is subject to SCOTUS mania with recent posts about Justice O'Connor, CJ Rehnquist and SCOTUS's capital jurisprudence and cert choices. But, with the High Court apparently disinclined to take another Blakely/Booker case ASAP (basics here, commentary here and here), we shouldn't overlook the reality that lower courts, and especially the federal circuit courts, are primarily going to define the shape of the post-Blakely/Booker world. And, as detailed in the summary of recent posts below, the circuit courts have been giving a notable shape to that world of late:
- First Circuit says Crawford does not apply at sentencing
- Second Circuit on scope of prior conviction exception
- Big Booker twosome from the 7th Circuit
- Great Harris test case from the 7th Circuit
- Eighth Circuit to reconsider reasonableness en banc
- Trying to keep up with the Eighth
- Ninth Circuit says Blakely not retroactive
- Two of note on Booker from the 11th Circuit
Readers should recall that the federal defender blogs, which are assembled here, are especially valuable resources for commentary on important Booker rulings. Recently, the Second Circuit Blog, the Seventh Circuit Blog, and the Ninth Circuit Blog have been especially active, with Bill Theis here asserting that the Seventh Circuit's recent decisions "do much to unravel Booker," and Steve Sady here calling the Ninth Circuit's retroactivity ruling "ripe for en banc review."
Sentencing from the halls of Congress
In response to AG Gonzales' recent call for minimum guidelines, one thoughtful editorial suggested that if certain members of Congress are truly concerned about "judges legislating from the bench," then perhaps lawmakers should stop trying "to sentence convicts from the halls of Congress." But, as detailed in this fascinating front page article in today's Chicago Tribune, House Judiciary Committee Chair James Sensenbrenner and congressional counsel Jay Apperson apparently believe they should oversee sentencing outcomes from the halls of Congress.
The full Tribune article is a must-read, not only for those interested in sentencing law and policy, but also for anyone concerned about inter-branch relations in the federal system. Here are snippets:
In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn't believe a drug courier got a harsh enough prison term.
Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded "a prompt response" as to what steps Flaum would take "to rectify the panel's actions" in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute....
Flaum declined comment on the situation, saying he does not publicly discuss matters pending before the court. He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong.
[Jay] Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties. Further, the letter may be an intrusion on the Constitution's separation-of-powers doctrine, or, at least, the latest encroachment by Congress upon the judiciary, analysts said.
The case at issue in this latest sparring between a member of Congress and the judiciary is United States v. Lissett Rivera, No. 02-3238 (7th Cir. June 16, 2005), amended (June 28, 2005) (available here). The Rivera decision, which was authored by Judge Frank Easterbrook, involves a procedurally complicated discussion of the guidelines and mandatory minimums (additional discussion of the Rivera case can be found over at the Seventh Circuit Blog in this post).
As the Tribune article explains, the ruckus has arisen in large part because the government in Rivera failed to appeal the district court's failure to impose a 10-year mandatory minimum sentence (although, as Peter G. notes in the comments to this post, that minimum perhaps was rightly not applied, despite the Seventh Circuit's statement to the contrary). According to the article, "Sensenbrenner also wrote a letter to Atty. Gen. Alberto Gonzales, demanding that the decision be appealed further and that he investigate why the U.S. attorney's office in Chicago did not appeal Rivera's sentence. Bryan Sierra, a spokesman for the Justice Department, said Sensenbrenner's letter was being reviewed."