August 15, 2005
Seventh Circuit says reliance on acquitted conduct still okay after Booker
The Seventh Circuit today in US v. Price, No. 03-3780 (7th Cir. Aug 15, 2005) (accessible here), at the end of a long opinion, had occasion to speak briefly to the consideration of so-called acquitted conduct at sentencing — that is, the continued validity of Watts — after Blakely and Booker. Though a few bold district judges such as Judge Gertner in Pimental and Judge Marbley in Coleman have, in essence, declared Watts abrogated by Blakely and Booker, the few circuits to address this issue have so far said Watts somehow remains alive and well . Here is the Seventh Circuit's cursory take on this issue (with some cites omitted):
The district court found for sentencing purposes that Mr. Davison was a member of the conspiracy despite the fact that the jury acquitted him on the conspiracy charge. In United States v. Watts, 519 U.S. 148 (1997), the Court held that a court is permitted to consider a broad range of information for sentencing purposes, including conduct related to charges of which the defendant was acquitted. The Court based its holding, in part, on 18 U.S.C. § 3661 ... and also on the notion that "different standards of proof . . . govern at trial and sentencing," id. at 155.
We join all the other courts that have confronted the issue in holding that the Supreme Court's holding in Watts remains the law after Booker.
Notably, the facts in Price provide a remarkable and stark example of the potential consequences of sentencing consideration of acquitted conduct under the guidelines. The facts in Price reveal that, for one defendant, the consideration of acquitted conduct added more than 25 years to his guideline sentence! Here's how:
The jury's verdict against Mr. Davison on the two distribution charges required a base offense level of 18 ... which would have carried a sentence of 27 to 33 months. However, despite the fact that the jury had acquitted Mr. Davison on the conspiracy charge, the district court at sentencing found by a preponderance of the evidence that Mr. Davison had been a member of the conspiracy and that more than 1.5 kilograms of cocaine base were attributable to him as a result. These findings elevated Mr. Davison's combined offense level to 38. The district court also applied a two-level enhancement to Mr. Davison's sentence for possession of a dangerous weapon in connection with a drug offense. The final offense level of 40, taken together with Mr. Davison's criminal history category, yielded a sentencing range of 292 to 365 months. The district court sentenced Mr. Davison to 360 months' imprisonment, to consist of two 180-month terms of imprisonment running consecutively.
Because defendant Davison's sentence was subject to a limited plain error remand, I am not sure Price serves as a viable case for testing in the Supreme Court whether Watts truly remains good law. But whenever I go back and read Blakely and its liberty-promoting principles, the tension between Watts and the principles of Blakely are palpable. More generally, I have a hard time understanding how the Constitution can and should still be understood to allow a defendant to receive 25 additional years in prison on the basis of a charge for which he has been acquitted.
Eighth Circuit join chorus saying Blakely does not apply to restitution
The Eighth Circuit today in US v. Carruth, No. 04-3568 (8th Cir. Aug. 15, 2005) (available here) issued an interesting opinion holding, as have all the other circuits to speak to the issue, that the Apprendi-Blakely-Booker line of cases do not prohibit judicial fact finding for restitution orders. Here is the heart of the court's analysis (with some cites omitted):
We agree [with other circuits] that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders. Under the MVRA there is no specific or set upper limit for the amount of restitution in contrast to criminal statutes which provide maximum terms of imprisonment and fine amounts. Instead, restitution is to be ordered "in the full amount" of victim losses as found by the court. 18 U.S.C. § 3664(f)(1)(A). Its amount will therefore vary depending on the value of the property lost. As we recognized in Ross, "there isn't really a 'prescribed' maximum." Thus, Apprendi's rule is not implicated. Neither does Blakely affect restitution orders; it dealt with a determinate sentencing scheme rather than a restitution statute without a set maximum limit.
At oral argument Carruth also cited United States v. Booker in support of his position. Booker had nothing to say about the MVRA, however, which provides an independent statutory basis for the district court's restitution order. As the Seventh Circuit has pointed out, Booker does not affect restitution orders since they are not subject to any prescribed statutory maximum and they are not in the nature of a criminal penalty. Restitution is designed to make victims whole, not to punish perpetrators; it is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality.
Notably, Judge Bye dissents, claiming that "the strictures of Apprendi ... apply to an order of restitution." Here is the heart of his analysis:
Once we recognize restitution as being a "criminal penalty" the proverbial Apprendi dominoes begin to fall. While many in the pre-Blakely world understandably subscribed to the notion Apprendi does not apply to restitution because restitution statutes do not prescribe a maximum amount, this notion is no longer viable in the post-Blakely world which operates under a completely different understanding of the term prescribed statutory maximum. To this end, Blakely's definition of "statutory maximum" bears repeating again, "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537 (emphasis added). Applying this definition to the present case, it dictates a conclusion that the district court's order imposing a $26,400 restitution amount violates the Sixth Amendment's jury guarantee because all but $8,000 of said amount was based upon facts not admitted to by Carruth or found by a jury beyond a reasonable doubt. Therefore, in contrast to the majority, I would vacate the district court's restitution order and remand to the district court with instructions to impose a restitution amount consistent with the Sixth Amendment.
As I commented after a recent Sixth Circuit decision on this issue, I find the Carruth majority's approach suspect in light of Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." In other words, I think Judge Bye has the better of this debate if we really take Blakely at face value. And, in the end, Carruth reinforces my view that Blakely's applicability to restitution and other non-prison sentences is an issue that merits Supreme Court attention sooner rather than later.
DOJ's Orwellian defense of mandatory minimum guidelines
I know it is 2005, but I sometimes conjure up images of 1984 when I hear the doublespeak coming from AG Alberto Gonzales or others in the Justice Department in support of a legislative response to Booker in the form of "the construction of a minimum guideline system" (basics here). This morning the doublespeak is coming from John Richter, the Acting Assistant Attorney General in DOJ's Criminal Division, through this Letter to Editor in today's Washington Post. (The Richter letter is in response to the Post editorial last week which suggested Gonzales is "seeking a legislative fix [to Booker] that would do far more harm than good.")
The Richter letter starts by extolling "the many positive aspects of the mandatory-guidelines system" and then states that the "minimum-guidelines system discussed in the attorney general's speech in June attempts to re-create positive aspects of the sentencing guidelines consistent with the Supreme Court's jurisprudence." But, as I noted here following the AG's June speech and here when a departing John Ashcroft assailed advisory guidelines in his closing days, the simple way to get back to mandatory guidelines, "consistent with the Supreme Court's jurisprudence," would be to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker in which the guidelines would remain mandatory but contested aggravating facts that increase sentences would have to be proved beyond a reasonable doubt to juries.
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 aggravating facts triggering longer guideline sentences now have to be proven to a jury or admitted by the defendant. The doublespeak chutzpah in the DOJ talk of a "minimum-guideline system" 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 to a jury trial and proof beyond a reasonable doubt articulated in Apprendi and Blakely.
The Richter letter also asserts that "the minimum-guidelines system does not impose any greater risk of a higher sentence than today's advisory system." I suppose this clever phrasing is accurate, since judges now can use their post-Booker authority to sentence above the guidelines in any case. But, the chief complaints about a minimum-guidelines system is that it will reduce or eliminate judges' authority to impose a sentence below the guidelines based on a case's individual facts. Thus, a minimum-guidelines system would impose a much greater risk that judges will not have the authority to hand down sentences they consider to be just.
Justice Stevens speech critical of death penalty now on-line
As discussed here and here, last weekend at the ABA's Annual Meeting, Supreme Court Justice John Paul Stevens delivered a speech that was highly critical of the death penalty. That speech now appears at this link from this page on the Supreme Court's website. Only a portion of the speech, which was delivered at the Thurgood Marshall Awards Dinner and was in honor of Abner Mikva, addresses the death penalty. But Justice Stevens packs many potent points into four paragraphs detailing "features of death penalty litigation that create special risks of unfairness."
August 14, 2005
Dog days review
I have not done a weekly recap since this one at end of last month, so I suppose what follows below is more of a mid-month review. And, perhaps befitting the dog days of summer, this abridged review of the past two weeks of posts shows that the sentencing action remains hot through August.
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- Roberts, the cert pool, and sentencing jurisprudence
- Justice Stevens speaks out against death penalty
- Judge Roberts on capital punishment
- SCOTUS is out of touch
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Cert petition in the Tennessee Blakely case Gomez
- Cert petition in a California Blakely case
- New Jersey applies Blakely (and Booker?)
- Recent Alaska Blakely decisions
BOOKER CIRCUIT COURT DEVELOPMENTS AND COMMENTARY
- Amazing reasonableness debate from the 8th Circuit
- More on Harris from the 7th Circuit
- Ninth Circuit rejects ex post/due process limit on applying Booker remedy
- Sixth Circuit finds no problems with judicial factfinding for restitution orders
- Sixth Circuit ruling shows importance of burden of proof
BOOKER DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- Judge Adelman spotlights problems with mandatories
- Judge Weinstein on rehabilitation as a sentencing goal
- More post-Booker data from the USSC
- WorldCom sentencing wrap-up and reflections
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Updating the (declining) state of the death penalty
- Justice Stevens speaks out against death penalty
- Stevens, Roberts, Gonzales and the death penalty
- Atkins does not get the benefit of Atkins
- An engaging (but incomplete) habeas debate
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Gonzales reiterates call for Booker fix
- Editorial against Gonzales' Booker fix
- Judge Pryor urging sentencing reforms in Alabama
- An engaging (but incomplete) habeas debate
- Martha agrees(?) to three more weeks of home confinement
- Great blog debate over residency restrictions