August 27, 2005
Government appealing millennium bomber sentence
As detailed in this post, Ahmed Ressam, who plotted to bomb Los Angeles International Airport on the eve of the millennium, received a 22-year federal sentence last month. US District Judge John Coughenour made some notable remarks about the war or terror at the sentencing and his imposition of 22-year federal sentence was less than the 35 years the government was seeking.
Thanks to this post over at TalkLeft, I see that the government has now appealed this sentence to the Ninth Circuit. This Reuters article and this Washington Post article provide all the basics, though they do not answer my question of whether it was Judge Coughenour's sentence or his comments that has spurred this appeal. In this post-Booker world, the government will have to convince the Ninth Circuit that the sentence is unreasonable, and it will be interesting to see the discussion of reasonableness in the briefing and in the ultimate decision in this high-profile case.
August 26, 2005
In praise of the blogoshpere and commentors
Earlier this month over at PrawfsBlawg, in this post I pondered the prospects of blogs as a scholarly medium (which generated an interesting blog dialogue that I summarized in this follow-up post). I am returning to this theme because I have been truly awed by the scholarly discussion taking place in the comments to my recent reefer madness post about the Eighth Circuit's decision upholding a sentence of 100 months for a defendant convicted of possessing with intent to distribute less than two ounces of marijuana. Considered along with these fascinating comments about the Chauncey case over at TalkLeft, and I am even more certain that the blogosphere (pushed along by smart commentors) can be a scholarly medium like no other.
On appeals and fast-track from the 1st Circuit
As noted here, I have not been able to keep up with all the late week sentencing action from the federal circuits. But, thanks to this post at Appellate Law & Practice, I did notice an interesting and potentially important decision by the First Circuit in US v. Melendez-Torres, No. 04-1914 (1st Cir. Aug. 25, 2005) (available here).
Melendez-Torres covers too much ground to quickly summarize (especially on a late Friday afternoon), but its discussion of appellate review and fast-track programs are especially noteworthy. First, on appellate review, the court makes this (suspect?) assertion:
Pursuant to § 3742(a), this Court therefore continues to possess the same jurisdiction to review Guidelines sentences as before Booker, and accordingly, also still lacks jurisdiction to review a sentencing court's refusal to depart downward based on its belief that the defendant's circumstances fail to warrant such departure....
In light of the new reasonableness standard of review that Booker creates, I am not certain this "lack of jurisdiction" conclusion follows (and I fear this conclusion could possibly have an unexpected and harmful impact on defendants seeking post-Booker variances).
Second, on fast track, in the course of rejecting an equal protection challenge to the absence of a fast-track program in Maine, the court drops a footnote to "note that at least three circuits [before Booker] have held that 'where [sentencing] disparities arise from varying charging and plea-bargaining policies of the individual United States Attorneys,' it is inappropriate for a judge to grant a downward departure." In light of the new emphasis on 3553(a) that Booker creates, I am not certain this point merits emphasis in the post-Booker world.
Whatever one thinks of the specifics of Melendez-Torres, for me it is just another example of a decision from a circuit court that will necessarily disappoint and worry those who hoped the circuit courts might fully appreciate and embrace the impact that Booker should have on federal sentencing realities.
Lots of late week sentencing action in the circuits
Though I do not see any decisions that jump off the page like the Eighth Circuit's reefer madness in Chauncey, sentencing fans looking for a little extra weekend reading should know that there are notable published opinions on a range of issues coming from First, Second, Fifth, and Ninth Circuits today.
Helpfully, the fine folks at Appellate Law & Practice have summarized an number of the decisions from the First, Second and Fifth Circuits in recent posts, and the folks running the various federal defender blogs (assembled here) are also keeping pace with various developments. (And I continue to encourage all readers to send me e-mails about significant rulings; especially with classes starting here at Ohio State, I am often unable to spot all the important holding and dicta being cranked out on a regular basis.)
Reefer madness in the 8th Circuit
I will leave it to readers to decide for themselves which judges on the Eighth Circuit seem to have their judgment clouded by the wicked weed in US v. Chauncey, No. 04-1529 (8th Cir. Aug. 25, 2005) (available here). The defendant in Chauncey, as a result of a criminal history leading to his classification as a career offender, received a sentence of 100 months after being convicted of possessing with intent to distribute less than two ounces of marijuana. According to Judge Lay's dissent, "Chauncey's undisputed purpose was to help [his friend] obtain marijuana to alleviate the painful effects of her multiple sclerosis."
In Chauncey, the Eighth Circuit rejects numerous arguments concerning the defendant's trial and (pre-Booker) sentencing. Particularly interesting for sentencing fans is the panel majority's rejection of the defendant's claim that his sentence was unreasonable in light of the 3553(a) factors. Revealing yet again the circuits' obvious disinclination to declare any within guideline sentencing unreasonable, the panel majority relies heavily on the applicable guideline range to "conclude that the sentence passes muster under Booker."
In a spirited dissent, Judge Lay argues that 100 months for Chauncey's offense violates the Eighth Amendment's prohibition on cruel and unusual punishments. Judge Lay concludes by noting that "the Government can cite no case that has approved a sentence as harsh as Chauncey's for possession with intent to distribute less than two ounces of marijuana." Disappointingly, Judge Lay's dissent does not engage the issue of reasonableness after Booker (although surely he believes the sentence is unreasonable as well as unconstitutional).
I find both the facts and the ruling in Chauncey sad, especially because it demonstrates again the persistence of the post-Booker appellate sopor in which the circuits are repeatedly suggesting through word and deed that even the federal guidelines' most extreme sentencing terms are always reasonable.
UPDATE: Over at TalkLeft, these comments about the Chauncey case are really interesting and telling.
Is SCOTUS interested in the consecutive sentencing Blakely issue?
Lower courts have all been in agreement that Blakely does not formally apply to a judicial decisions to impose consecutive sentences, even though a functional understanding of Blakely suggests its applicability when a sentencing scheme requires the finding of a predicate fact before a consecutive sentence can replace a presumptive concurrent sentence. Interestingly, thanks to the reemergence over at INCourts of Michael Ausbrook (whose coverage of state Blakely issues has been missed), I see that the Supreme Court might be interested in the consecutive sentencing Blakely issue.
As Michael explains in this post, after Indiana defendant Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences, the Supreme Court ordered Indiana to file a response even though the state has waived its right to respond. Though I think other Blakely issues are more pressing and one should not read too much into a briefing request, I think Michael is right to comment that "somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing."
August 25, 2005
Feeney, Ex Post Facto and Booker, oh my
The Eleventh Circuit today handed down an interesting and complicated opinion in a case that has been yo-yoing between the district and circuit courts since an original sentencing in November 1998. The chief issue in US v. Bordon, No. 04-10654 (11th Cir. Aug. 25, 2005) (available here), concerns the application of the provisions of the Feeney Amendment and Ex Post Facto doctrine. Mike at Crime and Federalism sets out the basics in this post.
Though the facts and holding of Bordon are alone enough to make me say "oh my," it is a concurrence by Judge Hill that has me thinking about the Wizard of Oz. Lamenting the 11th Circuit's refusal to consider Booker claims not raised in an initial brief (even if that brief was filed before Booker was decided), Judge Hill removes the curtain hiding the injustice of the circuit's approach to Booker claims:
This is the third appearance of this case in this court. All three appeals have tested the legality of the Bordon's sentences. This third appeal follows two prior vacations and remands. Today we affirm that the Bordon's sentences were lawfully imposed.
Yet, ironically, after the third appeal was filed in this court, the Supreme Court held that sentences such as these were unlawful. United States v. Booker, 125 S. Ct. 738, 764 (2005). In supplemental authority and at oral argument, the Bordons offered Booker as support that they were unlawfully sentenced.
Based upon the doctrine of stare decisis, I am convinced that our court is correct in holding that the Bordons cannot now bring Booker to our attention. The Bordons should have claimed relief under Booker — before Booker was decided!
For this precedent I am sorry. I confess that this feeling has long and deep roots. See McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1498-1501 (11th Cir. 1990) (Hill, J., dissenting). In McGinnis, I probably said all that I needed to say on this subject. I won't repeat it here. Id.
I should like to think that a court would want to correct an erroneous sentence of incarceration — if an efficient and prudential method could be devised to do so. We must feel that we cannot. Y et, the other circuits in this country seem to be doing so — and surviving!
We hold steadfastly to our precedent. That is worthwhile conduct and procedure. Stare decisis is an important doctrine. But I trust that, from time to time, it might be tempered with fiat justitia ruat coelum. [Footnote: Let justice be done though the heavens will fall.]
Short sentences for HealthSouth CFO and other execs
As detailed in this AP report, Aaron Beam, the former CFO of HealthSouth and a government witness in the Richard Scrushy trial (which resulted in an acquittal), was sentenced "to three months in prison today for his role in a $2.7 billion earnings overstatement." Ellen Podgor at the White Collar Crime Prof Blog comments here.
As noted by the father of Jamie Olis — recall that Jamie Olis is currently serving (and appealing) a severe 24-year sentence for his alleged role in the Dynegy fraud — the AP article details that of "10 former HealthSouth executives previously sentenced, only one was sent to prison, and that was for just five months. The nine others received combinations of probation, house arrest, fines and forfeitures." That reality should put even more heat and light on the Fifth Circuit's consideration of the reasonableness of the Olis sentence.
Another batch of post-Booker data from the USSC
I was surprised and pleased to discover, over at the US Sentencing Commission's Booker webpage, a new batch of post-Booker data at this link. Appearing only a few weeks after the last release of data (discussed here), this latest, greatest USSC post-Booker sentencing update includes all cases sentenced by close-of-business on August 3, 2005. These data now cover over 31,000 cases.
From a quick review, I believe the latest numbers do not change the basic stories emerging from the data released last month (details here and here, commentary here). Though the basic national cumulative numbers are the easiest to consume, perhaps the most interesting data continue to lurk within the circuit-by-circuit information and data on average sentence lengths, pre- and post-Booker.
USA Today overview of sex offender realities
[H]igh-profile cases ... don't tell the whole story of sex offenders in America. They don't reflect the surprisingly good news: Sex crimes against children have dropped dramatically in the last decade. An online national sex-offender registry was launched in July. And recent research shows doctors can better predict which offenders may strike again....
Dramatic drop in cases. Government figures show the rate of sexual assaults against adolescents ages 12 to 17 plunged 79% from 1993 through 2003, and the number of substantiated sex-abuse cases involving kids of all ages fell 39% in the same time period. [One expert], who has analyzed the data, sees multiple reasons for the decline: Greater incarceration of offenders, more therapy and use of psychiatric drugs, economic improvement in the 1990s and heightened public concern. ...
Treatment helps. Group therapy dropped the recidivism rate from 17% to 10%, according to a 2002 study that [anther expert] co-wrote. He studied 9,454 sex offenders in 43 states.
August 24, 2005
Web page on Streamlined Procedures Act
In this recent post, I assembled some materials and commentary on the habeas corpus restrictions moving through Congress in the proposed Streamlined Procedures Act. I have now discovered that the Campaign for Criminal Justice Reform has created this very helpful webpage about the legislation, which includes a number of links to the pending bills, congressional testimony and letters written by various groups opposing the legislation. The webpage is avowedly critical of the legislation; it asserts that the legislation "would effectively kill the writ of habeas corpus by stripping federal courts of jurisdiction to consider cases in which a prisoner's constitutional rights may have been violated."
Is the Ninth Circuit adopting a policy of equitable Booker retroactivity?
As regular readers know, the federal circuits have consistently held that neither Blakely or Booker are to be applied retroactively. And the Ninth Circuit, which had declared Ring retroactive before being reversed by the Supreme Court, last month in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005), ruled that Blakely is not retroactive with language suggesting Booker is not either.
But today, in a little order in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), a panel of the Ninth Circuit, by recalling the mandate and ordering resentencing in a case that apparently became final before Booker, seems to be adopting what I would describe as a policy of equitable Booker retroactivity. Here is the heart of the Crawford order (with cites omitted):
This case involves "extraordinary circumstances" sufficient to justify our recall of the mandate because: (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines; and (2) the Supreme Court's decision in Blakely foreshadowing its holding in Booker was rendered before the mandate issued. Accordingly, we recall the mandate, vacate the sentence, and remand to the district court for resentencing pursuant to Booker.
Importantly, the Crawford order also includes this tantalizing footnote:
Our decision in United States v. King, Nos. 99-10478, 01-10720 (9th Cir. August 16, 2005) (per curiam) [available here], where we addressed Booker in denying the defendant's motion to recall the mandate, is distinguishable because neither of the special circumstances that we highlight in Crawford's case were present in King. At the same time, however, in stressing that our decision here rests on both the sentencing judge's expressed misgivings about the sentence required by the mandatory Guidelines as well as the relative timing of the Supreme Court's Blakely decision and the termination of our appellate jurisdiction, we do not suggest that these same elements must always be present in order for a mandate to be recalled. Rather future panels will necessarily evaluate the existence of "extraordinary circumstances" warranting the recall of a mandate based on the facts of their individual cases.
The final two sentences of this footnote suggest to me that this panel of the Ninth Circuit is endorsing what I am calling a policy of equitable Booker retroactivity. Apparently, even for cases with "final" sentences at the time of Booker, the door is (wide?) open in the Ninth Circuit for defendants to move to have the mandate recalled by arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.
Because I am not an expert in Ninth Circuit practice, perhaps I am over-reading Crawford. If this is so, I hope readers in the comments or the smart folks at the Ninth Circuit Blog will help set me straight. But if I understand Crawford correctly, this seems like an extraordinarily important little order (and one that seems likely to get the attention of the government and other Ninth Circuit judges).
Federal judge bemoans 90-year minimum sentence
As detailed in this news report from New York, US District Judge Thomas J. McAvoy yesterday bemoaned having to impose essentially a life sentence on a defendant in his 20s for his actions as the getaway driver in a series of bank robberies:
Bank robber Gregory Rose could spend the rest of his life in prison after getting a 90-year, one-month sentence Tuesday from a federal court judge who said he believed the Kirkwood man's sentence was too long. Federal Judge Thomas J. McAvoy, sitting in Binghamton, said meting out Rose's punishment Tuesday for his role in a bank-robbing spree between 2003 and 2004 wasn't something he wanted to do. "In my opinion, the sentence is much too long," McAvoy said. "But it's not my call."...
Rose will serve three mandatory, consecutive 25-year sentences on the firearms convictions alone, even though he didn't go inside the banks that were robbed. He had possessed a handgun in the getaway car, prosecutors said...
Rose is 22 now, and was 20 years old when he and several other older men committed a spree of armed bank robberies in three states ... from October 2003 to February 2004. Rose was convicted by a federal court jury in February on a conspiracy charge, as well as multiple counts of bank robbery and use of a firearm during a crime of violence. No one was harmed in the robberies, said Rose's attorney.
Notably, Judge McAvoy was perhaps especially troubled by the sentence he felt he had to impose on Rose because Rose's (more culpable) co-defendant is likely to receive a sentence less than half as long:
In each of the robberies, a lone gunman -- who prosecutors later said was Inthanousone Borihane, 25, of Johnson City -- threatened bank employees with a handgun.... Borihane could get 43 years in prison as a result of a guilty plea.
First Circuit ducks federal-state disparity issue
As noted in this post, the First Circuit in US v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005), at the end of a lengthy opinion, seemed to endorse post-Booker consideration of disparities between state and federal sentencing. As detailed in this post, the government responded by petitioning for panel rehearing.
Thanks to this update from Tom Lincoln at the PRACDL Blog, I now see that the First Circuit has ducked substantive consideration this issue. As Tom reports, rehearing has been denied, but though this this errata entry, the First Circuit has added a footnote to its original Wilkerson opinion stating "We express no opinion at this time about whether federal state sentencing disparities may be considered under the post-Booker advisory guidelines."
August 23, 2005
Supplement for Sentencing Law and Policy casebook now available
As detailed in this post, a few weeks after Booker was (finally) handed down, my casebook co-authors Nora Demleitner, Marc Miller and Ron Wright and I were able to finish a 100-page Blakely/Booker special supplement to our main text Sentencing Law and Policy: Cases, Statutes and Guidelines. (That special supplement, which remains a useful resource for teaching Blakely and Booker, can still be accessed at this link.)
Now, as a new semester gets underway, I am proud to be able to share a new supplement which provides additional materials for all the chapters of the Sentencing Law and Policy casebook. You can download the new 2005-2006 summer supplement below and it also will soon be available at this website supporting our sentencing text (along with other sentencing materials).
In addition to edited versions of Blakely and Booker, this new supplement has lots of primary materials and notes covering state sentencing systems after Blakely and federal sentencing after Booker. The new supplement also has an edited version of Roper v. Simmons, as well as problems and notes on other major sentencing developments from the past year.
My co-authors and I hope adopters of our text and others find this new supplement useful, and we welcome comments and suggestions.
Judge Lay advocating drug courts again
As detailed in this post, last month Judge Donald Lay of the Eighth Circuit, in an otherwise ordinary drug case, added a concurrence to advocate for the development of federal drug courts. Today, Judge Lay concurs in US v. Ellefson, No. 04-1293 (8th Cir. Aug 23, 2005) (available here) to pitch for drug courts again. Here are snippets:
Ann Ellefson was addicted to drugs. During her addiction, she allowed her boyfriend to use her apartment as a storage and distribution center for his business in illegal narcotics. The evidence showed that she was aware of his activities, accompanied him on a delivery of illegal materials, and independently offered to aid him in carrying out his business. Under these circumstances, the jury reasonably found her guilty of aiding and abetting the sale of illegal narcotics. Yet I wonder the extent to which her drug addiction contributed to her crimes and I find myself doubting whether the interests of society — let alone those of Ellefson — are served by her 188-month sentence (almost sixteen years in prison). To the extent that her addiction caused her actions, a sentence addressing her underlying addiction would better serve the interests of society.
Unfortunately, our inflexible federal criminal justice policy responds to the epidemic of drug crimes without adequately providing federal judges with the ability to address drug addiction — the root cause of this epidemic. In contrast, many states have created specialized drug courts that approach this epidemic with much greater success.... Evidence shows that the flexible and pro-active approach of drug courts reduces recidivism rates to less than half of the recidivism rate of those offenders who are simply imprisoned for their drug crimes.
Unfortunately, the federal criminal justice system offers no such alternatives for nonviolent, substance-abusing offenders. Given the tremendous economic and human costs of imprisoning nonviolent drug offenders, Congress should seriously consider creating federal drug courts. Federal drug courts would save a significant amount of money for taxpayers.
Though I laud Judge Lay's continued advocacy for drug courts (which, as detailed in this post, has reached the op-ed pages of the New York Times), I wonder if he might operationalize his concerns more effectively in a post-Booker world.
In effect, Judge Lay is suggesting that 15+ years imprisonment for Ann Ellefson is "greater than necessary" to serve the purposes of punishment set forth in 3553(a). Rather than simply concur in the affirmance of Ellefson's sentence, perhaps Judge Lay should dissent on the ground that, in light of the mandates of 3553(a), Ellefson's sentence is unreasonable. Of course, without another judge's vote, such a dissent would not have any impact in the case at hand. But such a dissent might help break the post-Booker appellate sopor in which circuits are repeatedly suggesting through word and deed that the federal guidelines' long sentencing terms are always reasonable.
Death penalty news and commentary
This morning, more than a few of the always copious death penalty pieces in the newspapers have caught my eye:
- In competing commentary pieces, one author argues that the BTK case presents "the best argument for keeping" the death penalty, while another author asserts the case shows the "arbitrariness of its application."
- This editorial from North Carolina calls for lawmakers to "approve [a proposed] death penalty study and let the Study Commission on Capital Punishment get on with this important work."
- This article from Ohio reports on a "review of some of Ohio's earliest death penalty cases [which] found little consistency comparing the seriousness of the crime with the outcome, including whether offenders were sentenced to death."
- The Washington Post, after running this editorial Monday on Justice Stevens speech at the ABA critical of the death penalty (discussed here and here), this morning has this editorial on errors in capital cases.
Still more on state approaches to juvenile adjudications
Responding to posts about recent rulings from Oregon and from Ohio concerning whether juvenile adjudications come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful North Carolina reader provided this helpful report on how these issues are playing out in the Tar Heel State:
In North Carolina, we have an aggravating factor in felony sentencing for defendants with any prior adjudication as a juvenile for an offense that, if committed by an adult, would be a Class A through Class E felony. Finding of an aggravating factor permits the court to impose a sentence from the aggravated range in the sentencing grid cell where the offender's class of offense and prior record level place him.
In our "Blakely fix" legislation from this session of our General Assembly, North Carolina left determination of that aggravating factor in the hands of the judge, assuming it would fit the prior conviction exception. Other statutory aggravating factors now must be found by a jury or admitted by the defendant before they can be weighed against any mitigating factors in determining whether or not to impose a non-presumptive sentence.
On August 2nd, the N.C. Court of Appeals (our intermediate appellate division) in State v. Yarell, No. COA03-1454 (N.C. App. Aug. 2, 2005) (available here), went in the same direction as Oregon's Supreme Court, and held that prior juvenile adjudications do not fit the prior conviction exception. The decision (relevant part in only the last four paragraphs) turns solely on the term "conviction" and its application in our juvenile statutes. N.C. Gen. Stat. 7B-2412 states that "[a]n adjudication that a juvenile is delinquent or commitment of a juvenile to the Department for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights."
August 22, 2005
Important 2d Circuit ruling on drug quantities
Thanks to a helpful reader, I just learned that the Second Circuit today issued an important ruling about the treatment of drug quantities in the application of § 841, the chief federal drug statute. Here is the court's helpful summary of its holding in US v. Gonzales, No. 03-1356 (2d Cir. Aug. 22, 2005) (available here):
To summarize, we conclude:
(1) The drug quantities specified in 21 U.S.C. § 841 are elements that must be pleaded and proved to a jury or admitted by a defendant to support any conviction on an aggravated drug offense, not simply those resulting in sentences that exceed the maximum otherwise applicable for an identical unquantified drug crime.
(2) The sentencing ranges prescribed in § 841 for aggravated drug offenses may not be deconstructed so that quantity operates as an element for purposes of determining an applicable maximum but as a sentencing factor for purposes of determining an applicable minimum. Thus, where a drug quantity specified in § 841(b)(1)(A) or -(b)(1)(B) is neither proved to a jury nor admitted by a defendant, a district court is not required to impose the minimum sentence mandated by those sections even if it may impose that same sentence pursuant 42 to § 841(b)(1)(C).
(3) Because the defendant in this case was misinformed as to his right to have the charged statutory drug quantity proved to a jury and because he did not admit quantity at his plea allocution, his guilty plea to an aggravated § 841(b)(1)(A) offense was not knowing, voluntary, or sufficient to support the judgment of conviction. The circumstances of this case do not show that Gonzalez would have pleaded guilty to the offense had he been properly advised; thus, the error was not harmless. Further, because the government was unwilling to accept defendant’s plea to an unquantified drug offense in satisfaction of the charge, the defendant should have been allowed to withdraw his guilty plea.
A call for USSC to focus on racial disparity
As detailed in this post, back in June the US Sentencing Commission issued a notice seeking input on possible priority policy issues and asked to receive public comment by August 15, 2005. Responding to that call, The Sentencing Project has submitted to the USSC a set of thoughtful comments focused on racial disparity issues. The submission, which can be accessed at this link, includes the following potent recommendations:
- Revisit the impact of mandatory minimums, an issue which has not been assessed since the Commission's 1991 study
- Analyze the effects of plea bargaining by race, including the connection between factors of criminal history and mandatory minimums
- Assess the use of substantial assistance departures by race
- Analyze the effects of criminal history on sentencing severity, including any possible effects of racially biased law enforcement practices
- Establish a procedure for developing Racial/Ethnic Impact Statements to accompany proposed sentencing modifications in order to project the effects of sentencing policy on racial disparity