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September 10, 2005

A district judge's perspective on post-Booker sentencing

In this post, I noted that, at the conclusion of a panel on federal sentencing at the Sixth Circuit Judicial Conference that I participated in June, James Carr, the Chief Judge of the US District Court for the Northern District of Ohio, rose from the audience to share great insights about how judges and policy-makers should look at the post-Booker world.  Chief Judge Carr has turned those remarks into an article to appear in a coming issue of the Federal Sentencing ReporterI can now make Chief Judge Carr's important and insightful article, entitled "Some Thoughts about Post-Booker Sentencing," available for downloading below.  Here is the article's opening:

Those who believe that the Supreme Court's restoration of considerable, but by no means absolute, judicial discretion and control over sentences is sensible, sound, and wise — and worth preserving — should respond vigorously to demands to reinstate the pre-Booker regime, or institute an even more restrictive sentencing structure.  They should begin doing so, moreover, earlier rather than later so that public discussion, once it begins in earnest, may more likely involve thorough consideration of the premises underlying, purposes for, and consequences of particular legislative proposals.

Any discussion of sentencing post-Booker should, moreover, look beyond simply the number of departures and deviations from Guideline sentences and the extent to which the rate of departures and deviations may be increasing. Comprehensive evaluation of sentencing under Booker must take into account several considerations. The following seem to me to be among them.

Download carr_fsr_piece_on_booker.pdf

September 10, 2005 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Amazing state Justices

I am back from a terrific trip to North Carolina participating in this conference, and my respect for Tar Heel sentencing was further enhanced by the experience. In addition to benefiting from the many nuanced and sophisticated insights of other speakers, I have to give a special shout out to the Justices of the North Carolina Supreme Court, three of whom attended the conference just to listen(!) to defense attorneys(!) talk about sentencing. (I can't help but wonder how much better the US Supreme Court's sentencing jurisprudence might be if SCOTUS Justices made a habit of attending these sorts of events.)

Upon my return home, I received news of another event further enhancing my respect for state Justices: the Supreme Court of Washington yesterday issued a thoughtful opinion exploring Blakely's applicability to a restitution order.  I received via e-mail this helpful summary of the ruling in State v. Kinneman, No. 76051-9 (Wash. Sept. 8, 2005) (available here):

On Thursday, the Washington State Supreme Court, in an unanimous decision, held:

(1) "punishment for purposes of Apprendi and Blakely includes punishments other than prison sentences";

(2) restitution under Washington law is "both punitive and compensatory", and "is strongly punitive because [the restitution statute] authorizes restitution in an amount that exceeds the amount necessary to compensate the victim" [the law authorizing the criminal trial judge to impose up to double the offender's gain or the victim's loss]; and

(3) "while restitution is punishment, it does not require jury fact-finding under the post-Blakely decision in United States v. Booker... Given the broad discretion accorded the trial judge by the statute [no restitution, in some extraordinary circumstances, up to double the offender's gain or the victim's loss], the lack of any set maximum, and the deferential abuse of discretion review standard, the restitution statute provides a scheme that is more like indeterminate sentencing not subject to Sixth Amendment jury determinations than the [statute's] determinate sentencing scheme at issue in BlakelyBooker underscores the critical fact that the mandatory and binding nature of the [statute's] provisions for imposing exceptional sentences was crucial to the holding in Blakely."

September 10, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

September 9, 2005

Judge Kopf, in fine form, on 11(c)(1)(C) pleas

Nebraska US District Judge Richard Kopf, who long ago earned a special plaque in my Sentencing Judges Hall of Fame for writing the most entertaining opinions, has another corker with US v. Coney, No.  (D. Neb. Sept. 8, 2005) (available for download below).  Coney covers a lot of important ground: the opinion primarily addresses how a judge should evaluate a Rule 11(c)(1)(C) plea agreement that requires a sentence below the otherwise properly calculated Guidelines range, and it also discusses the new Statement for Reasons form many judges are now using to explain their post-Booker decisions.  Also, in footnote 15, the Coney opinion touches briefly upon the burden of proof issues that Judge Kopf and his colleague Judge Bataillon have been debating recently (details here, commentary here).

Thus, the substance of Coney makes it an important opinion.  But how Judge Kopf packages his insights always makes his opinions must-reads.  Consider this opening paragraph:

Prosecutors and defense lawyers sometimes enter into binding plea agreements that require a judge to impose a particular sentence or apply a particular sentencing range that is above or below that produced by proper application of the advisory Guidelines.  When such a plea agreement smells too much like cow manure siphoned from a feedlot after a swampy, summer rain, judges should not pretend the odor is lilac.  On the other hand, if the plea agreement stinks, but the stench is more like kitty litter than cow manure, a judge should hold his or her nose and move on. The trick is to discern the difference.

Download kopf_coney_opinion.pdf

September 9, 2005 in Booker in district courts | Permalink | Comments (4) | TrackBack

Around the blogosphere

While I was in transit to North Carolina, still more interesting items hit the blogosphere. So, once you have made it through this prior link list, consider checking out these matters:

September 9, 2005 | Permalink | Comments (0) | TrackBack

September 8, 2005

Cert. pool filling up with Blakely cases

In posts here and here, I have explored whether John Roberts might impact the Supreme Court's agenda even more than its jurisprudence.  (Of course, I am focused on this issue in part because there are so many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention and in part because I hope not to have to keep kvetching again and again about the Court's grants of cert. in so many death penalty cases.)

Providing a fitting follow-up to my recent reflections on the Supreme Court's likely next foray into the Blakely/Booker thicket, I see from fellow bloggers that the SCOTUS cert. pool is continuing to fill up with cases raising Blakely issues:

September 8, 2005 in Blakely in the Supreme Court | Permalink | Comments (0) | TrackBack

Heading to where Blakely is taken very seriously

Today is a travel day as I head to North Carolina to participate Friday in an all day Blakely/Booker-fest put on by the North Carolina Academy of Trial Lawyers.  Details on this event, entitled "What To Do After Booker and Blakely," are available here.

I am quite excited to be heading to North Carolina, in part because I think so highly of the state's post-Blakely work in both the legislature and the judiciary.  As detailed in this post, North Carolina's legislature has enacted a Blakely fix that provides for jury determination of aggravating factors, and North Carolina's Supreme Court has thoughtfully applied Blakely to the state's sentencing system and has also held that Blakely error is structural and cannot be harmless.

Though I hope to get on-line late Thursday, blogging will likely be light through the weekend.  If you need a sentencing fix, check out some new-and-improved pages on Blakely in the states assembled here (including this entry to get into a Carolina mood).  Or consider taking the time to read my forthcoming Stanford Law Review piece on offense-offender issues or to cruise all the sentencing action around the blogosphere.  In addition, it is never too early to start gearing up for next week's confirmation hearings for Judge Roberts by reviewing the current SCOTUS sentencing head-count and other recent Supreme Court coverage collected here and here and here.

In addition, with the big OSU-Texas game now only days away, true sentencing-football afficionados can start pondering whether the scarlet look of this blog will inspire the Buckeyes more than the burnt orange cover of the federal guidelines manual inspires the Longhorns.

September 8, 2005 | Permalink | Comments (1) | TrackBack

Lots of sentencing around the blogosphere

The federal defender blogs (which are assembled here), as well as many other favorites, have a number of sentencing items that merit a look:

September 8, 2005 | Permalink | Comments (0) | TrackBack

The 11th Circuit's harsh handling of the Booker pipeline

Thanks to law.com, you can access this article from the Daily Business Review, which details the tough approach the 11th Circuit has been taking on Booker pipeline issues and the resulting protestations from a few of the circuit's judges.  The article focuses on Judge Tjoflat's recent concurrence in US v. Thompson, No. 04-12218 (11th Cir. Sept. 1, 2005), which laments the circuit's approach to Booker plain error (details here).  The article also notes Judge Hill's opinion in US v. Bordon, No. 04-10654 (11th Cir. Aug. 25, 2005), which assails the circuit's refusal to consider Booker claims not raised in an initial brief (details here). 

The article has a number of strong quotes from the opinions and commentators.  Capturing the essence of these issues is a quote from lawyer and sentencing expert Benson Weintraub, who says "the 11th Circuit is completely out of sync with the rest of the country's courts of appeal. The Thompson decision underscores the rigidness of this court in extolling form over substance in the most critical of criminal cases."

September 8, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

September 7, 2005

Second Circuit works out Apprendi indictment issue

Thanks to this post over at How Appealing, I see that today in US v. Cordoba-Murgas, No. 04-3131 (2d Cir. Sept. 7, 2005) (available here), the Second Circuit addresses an issue relating to Apprendi and indictments.  Here are snippets from the start of the opinion:

We are asked to determine whether a defendant who has been indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), with no particular quantity specified in the indictment, may be sentenced to a term of imprisonment longer than the statutory maximum for a violation of that crime with an unspecified quantity of drugs, if the defendant admits to a specific quantity in his plea allocution which would allow for the longer sentence....

We conclude that though an indictment can be waived by a defendant, admission of quantity in a plea allocution does not constitute a waiver of the required elements of an indictment. Therefore, when a defendant has been indicted for a drug crime involving an unspecified quantity of drugs, the defendant cannot be sentenced above the statutory maximum for an indeterminate quantity of drugs, as set forth in 21 U.S.C. § 841(b)(1)(C).

My chief reaction to this ruling is that if it takes 5+ years to work out in the lower courts this sort of Apprendi indictment issue, its going to take forever to work out all the Blakely/Booker issues that  need to be resolved.

UPDATE:  The Second Circuit Blog has more on Cordoba-Murgas here.

September 7, 2005 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

More academic thoughts on the offense/offender distinction

Last year, in the wake of the Blakely decision, Professor Robert Weisberg organized a fantastic symposium at Stanford Law School entitled "The Future of American Sentencing: A National Roundtable on Blakely."  (Background on the Stanford event can be found here and here, and highlights here.)   As a follow up, Bob and Professor Marc Miller had the great idea of encouraging participants to author short pieces on specific subject matters in an effort to map out the intellectual history and best practices of modern sentencing reforms.  These pieces are to be published in a special issue of the Stanford Law Review due out in October.

My contribution to this effort, which covers with a greater policy focus some of the offense/offender ideas I first developed in my Conceptualizing Blakely article, is now polished enough for sharing.  My article, which goes by the less-than-scintillating title of "A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics," can be downloaded below.  Here are selections from the introduction and conclusion:

The universe of sentencing considerations can be divided between offense conduct and offender characteristics. Historically, offense conduct (e.g., harms to victims, whether a weapon was used, the amount of money stolen or drugs trafficked) and offender characteristics (e.g., an offender's prior criminal history, employment record, family circumstances) have both played a significant role in sentencing decision-making, and both types of considerations remain central in modern sentencing systems. But the distinctive import and impact of offense conduct and offender characteristics at sentencing have not often been carefully and systematically examined.

This Article explores, both historically and normatively, the consideration of offense conduct and offender characteristics at sentencing. Part I outlines the shifts in sentencing theory and offense/offender focus, and Part II analyzes the Supreme Court's recent sentencing jurisprudence. These Parts spotlight numerous important and illuminating connections between the offense/offender distinction and sentencing theory, constitutional jurisprudence, and modern sentencing reforms.  They also highlight that federal sentencing reforms, when examined with a particular focus on offense/offender issues, exhibit some disconcerting attributes. Part III offers a few basic recommendations that would enable the federal sentencing system to strike a sounder balance, as have many state sentencing systems, in the consideration of offense conduct and offender characteristics at sentencing.

Many federal district judges have started to use the new discretion they possess in the wake of the Supreme Court's decision in Booker to consider and give effect to offender characteristics at sentencing. Congress and the U.S. Sentencing Commission should give particular attention to those offender characteristics (such as age and family circumstances) that are now being most frequently discussed by sentencing courts after Booker. As a result of the unique remedy developed by the Supreme Court in Booker, federal sentencing judges, guided by the sentencing mandates of section 3553(a) of the Sentencing Reform Act, are now able to develop a "common law of sentencing" through their fact-specific, case-by-case consideration of federal sentencing policy and practices. In keeping with both the original spirit and goals of the Sentencing Reform Act, Congress and the Sentencing Commission should seek to integrate the common-law wisdom being developed in the courts into all future federal sentencing reforms.

UPDATE:  The final proof of the piece is now available: Download berman_conduct_and_characteristics_58_stan. L. Rev. 277.pdf

September 7, 2005 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Does Blakely/Booker trump Harris?

In an opinion handed down last week in US v. Garner, 2005 WL 2133606 (N.D. Ohio Sept. 1, 2005), Judge David Dowd of the Northern District of Ohio examined whether "the [sentence-enhancing] 'fact' (quantity of cocaine attributable to the defendant) must be submitted to the jury and proved beyond a reasonable doubt in a situation where the 'fact' results in a mandatory minimum sentence which exceeds the range calculated by the court in the process of determining the post-Booker advisory guideline range."   Or, to formulate the issue in another way, could Blakely/Booker trump Harris when they are in tension?

Notably, as detailed here, at least one state court has concluded that Blakely trumps Harris when they are in tension.  And Judge Dowd, struggling with many novel issues in the context of a case in an unusual procedural posture, come to this conclusion:

In the Court's view, the only two sentencing alternatives facing the Court are the imposition of the mandatory minimum sentence of 120 months, as endorsed by the reasoning of Harris, supra, or because of the language in the Booker opinion written by Stevens, the imposition of a sentence beginning with the advisory guideline range of 87 to 108 months based on the Sixth Circuit approved calculation of the amount of cocaine attributable to Garner, as earlier found by the undersigned judge. The Court elects to impose a sentence based on the advisory guideline calculation, subject to the provisions of 18 U.S.C. § 3553(a) rather than the potentially harsher sentence of 120 months. The Court hereby schedules re-sentencing....

September 7, 2005 in Booker in district courts | Permalink | Comments (0) | TrackBack

Creative (and effective?) shaming

The Columbus Dispatch, my local paper, today ran this amusing article on the creative sentences of a local judge.  The article raises issues about the appropriateness and efficacy of shaming punishments.  Here are some highlights:

Judge Michael A. Cicconetti usually lets the punishment fit the crime. Using a blend of humor and humiliation, the Painesville Municipal Court judge has sentenced defendants facing lowlevel crimes to fates such as sharing a sty with a pig and parading a donkey through town....

In his previous career as a defense attorney, Cicconetti quickly learned that jail doesn't leave much of an impression on some people, who soon become repeat offenders. "I have not had any of those people return, ever," he said....

Cicconetti first experimented with alternative sentencing with motorists who sped through school zones, making them spend a day working as a school crossing guard.... Some of the sentences Cicconetti has handed down through the past few years: a man ran with officers in a race for fleeing police; a couple apologized in a newspaper for a public sex act; a man and a woman marched with a donkey for vandalizing a statue of baby Jesus....

"Generally, the humiliation type of punishment may serve to teach the lesson well," said Lewis Katz, a criminal law professor at Case Western Reserve University in Cleveland. "You can't really argue with success if they're not depriving an individual of their liberty, and as long as it's related to the offense."

Below are links to some prior posts in which shaming punishments were discussed and debated:

September 7, 2005 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

September 6, 2005

A big circuit day for criminal history

Perhaps unsurprisingly, the federal circuit courts have returned from a long weekend by handing down lots of new opinions.  And, of course, sentencing and Booker issues are in the mix.  Though the 8th Circuit continues its daily coverage of a broad range of interesting sentencing issues (as evidenced on this official opinion page), criminal history issues are front-and-center in a number of circuit rulings today.  Lacking time to consume all the action, I will just note and link:

Among this group, Thompson may be the most interesting read because of the lengthy dissent by Fourth Circuit Chief Judge Wilkins.  Readers are highlight encouraged to note any important needles in today's criminal history haystack.

September 6, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics | Permalink | Comments (3) | TrackBack

A criminal law perspective on Janice Rogers Brown

The folks over at The Volokh Conspirary, starting with Orin Kerr here and followed up by Todd Zywicki here, are talking up the possibility of Janice Rogers Brown as President Bush's next Supreme Court nominee, and they suggest she may be relatively liberal on questions of criminal law and procedure. (She is reputed to be extraordinarily conservative on other issues).  In addition to generating interesting comments at Volokh, this new Brown buzz has drawn Brown admiration from Mike at Crime & Federalism, who says she "would be a perfect Justice," and from Ken at CrimLaw, who suggests she would be the only Justice who "believes in the 4th Amendment."

Because I have not had a chance to review personally her record as a Justice on the California Supreme Court, I have no first-hand opinion about Janice Rogers Brown as a potential SCOTUS nominee.  But I find the buzz and its criminal law focus interesting, and it gets me wondering how a Justice Brown might fit into the current SCOTUS sentencing head-count on Apprendi-Blakely issues.  (In this context, however, it should be noted that Brown joined the California Supreme Court opinion in Black which somehow held that California's sentencing scheme was unaffected by Blakely.)

September 6, 2005 in Who Sentences? | Permalink | Comments (4) | TrackBack

Sixth Circuit says it still lacks jurisdiction to review failure to depart

The Sixth Circuit today, following the lead of other recent circuit decisions, holds in US v. Puckett, No. 04-5988 (6th Cir. Sept. 6, 2005) (available here), that even after Booker it lacks jurisdiction to review discretionary denials of departures:

In light of our own precedent, and the recent decisions by the other circuits, we hold that ... although the sentence departed from may be reviewed under Booker, we shall not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.

As I stated here in conjunction with a similar recent decision from the First Circuit, I am not certain this "lack of jurisdiction" conclusion can be sensibly squared with the new reasonableness standard of review that Booker creates.  More importantly, it is unclear, and yet critical, what this approach might mean for defendants seeking post-Booker variances.  Are circuits going to eventually conclude that they lack jurisdiction to review sentences in which district courts refused to grant a variance (since all district courts surely now understand that they have discretion to vary from the guidelines in every case after Booker)?

CLARIFICATION:  In this comment, David rightly notes that Puckett is a pipeline case, involving a defendant apparently sentenced before Booker, which should not be read as conclusively settling various post-Booker appellate review issues.  But my broader concern is with prospect of circuit courts suggesting that, even after Booker, that lack jurisdiction to review certain discretionary decisions by sentencing judges if the final sentence ends up within the applicable guideline range.

September 6, 2005 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

Recapping an eventful long weekend

The Labor Day weekend became quite eventful with the passing of Chief Justice Rehnquist and the nomination of nominee John Roberts to take his place.  Here is a recap of weekend posts covering and commenting on these developments:

And, of course, How Appealing is the place to go for an overwhelming collection of media links on these developments.

September 6, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

September 5, 2005

Pondering a (cert.) pool with much splashing about

Because there are so many post-Blakely and post-Booker questions that I think merit the Supreme Court's immediate attention, I have focused considerable attention on what the Supreme Court decides to decide.  Consider, for example, my kvetching again and again about the Court's grants of cert. in so many death penalty cases, and my recent reflections on the Supreme Court's likely next foray into the Blakely/Booker thicket.  And, in conjunction with Judge Roberts' initial nomination, I speculated in this post whether a Justice Roberts' might change the Court's agenda even more than its jurisprudence.

For a number of reasons, I think the cert. plot thickens with the prospect of a Chief Justice Roberts.  First, as David Franklin details in this fascinating post at Supreme Court Extra, the greatest impact of a Chief Justice Roberts could be through efforts to expand the Supreme Court's caseload and to reform the operation of the cert. pool.  Though such changes in the Court's operation will not garner great media attention, they could profoundly impact the Court's docket and its importance in many areas of the law.

Second, if Justice O'Connor now stays on the Court until a new nominee is named and confirmed, the cert. dynamics for this coming Term could be impacted.  The folks over at SCOTUSblog rightly note in posts here and here that, even if she continues to serve, it is unlikely Justice O'Connor would have an opportunity to cast decisive swing votes on the merits of big cases before her successor is named and confirmed.  But, over the next few months, the Supreme Court will be making cert. decisions to fill out its docket for the October 2005 term.  If Justice O'Connor sticks around, she certainly could be in a position to cast decisive swing votes on which cases the Court will take (although perhaps, as a lame duck Justice, she might try to avoid swing cert. votes).

I am focused on these cert. dynamics because I hope the Supreme Court will soon start taking up the many post-Blakely and post-Booker questions that need to be addressed.  In addition, in light of the current Supreme Court "head-count" on key cases in the Apprendi-Blakely-Booker line (as detailed here), sentencing jurisprudence could experience some major immediate course changes if cases like Almendarez-Torres and Harris are soon brought up for re-examination.

September 5, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

Another sentencing summer to remember

Labor Day weekend marks the symbolic end of summer, and thus serves as a good excuse for reviewing the biggest sentencing stories of the summer.  Looking back over my periodic "review posts" since Memorial Day (which can be found, from earliest to latest, here and here and here and here and here and here and here and here and here and here and here), I have a hard time picking the biggest summer sentencing story. 

Obviously, Justice O'Connor's retirement, Judge Roberts' nomination(s), and Chief Justice Rehnquist's passing are the biggest legal stories of the summer.  And, as discussed here and here and elsewhwere, the potential impact of these Supreme Court transitions on sentencing jurisprudence could be profound.  But, there were so many other big developments this summer as well, ranging from many major states Blakely rulings (some highlights here and here) to sex offender panics producing significant legislative proposals (some highlights here and here) to the brouhaha over Rep. Sensenbrenner's letter to the Seventh Circuit (highlights here) to the on-going federal struggles with Booker and the call for a Booker fix coming from AG Alberto Gonzales (highlights here).

Of course, this summer has actually been calmer than last year, which was the summer of Blakely.  Nevertheless, anyone who took the summer off missed a lot of notable sentencing law and policy action.

September 5, 2005 | Permalink | Comments (0) | TrackBack

Roberts nominated to be Chief

Early this morning, President Bust nominated Judge John Roberts to serve as Chief Justice of the US Supreme Court; posts here and here from SCOTUSblog discuss the news and analyze its immediate impact on the Roberts' confirmation hearings and the Court's composition.  Below are some of my major posts about Roberts and sentencing issues from the last few months:

September 5, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

DOJ brags about white-collar prosecutions (but is silent on sentences)

Thanks to this post over at the White Collar Crime Prof Blog, I see that the Justice Department is bragging through this fact sheet about the efforts of the Corporate Fraud Task Force "to prosecute corporate malfeasance, protect the jobs of hard-working Americans, and restore confidence to the marketplace."  What I do not see in this interesting DOJ promotion are any details about the sentences imposed in the "over 700 corporate fraud convictions" that the Corporate Fraud Task Force has secured since July 2002.

For a host of reasons, the data on the sentences imposed in this unique universe of 700 white-collar cases could be quite interesting and important.  As discussed in some prior posts (here and here and here), there might be a pattern of leniency in some white-collar cases after Booker (which might in turn reflect a perception that the federal guidelines are too tough on white-collar offenders).  Since this universe of 700 cases straddles the Booker decision, sentencing data on these cases might be of great value to researchers interested in various Booker or white-collar sentencing issues.

Do you think that, if we all ask nicely and remember to say please, DOJ might possibly release another fact sheet with sentencing data on these cases?  I would be grateful, but I am not holding my breath.

September 5, 2005 in Booker in district courts, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack