October 1, 2005
Weekend sentencing reading
Thanks to SSRN, I can link to to a number of additional new sentencing articles in case you are hungry for more weekend reading after reading these pieces noted last week:
- Discrimination in Sentencing on the Basis of Afrocentric Features by William T. Pizzi , Irene V. Blair and Charles M. Judd
- Constitutional Structure and the Scope of Judicial Discretion Under the Eighth Amendment by Bradford R. Clark
- Separation of Powers and the Criminal Law by Rachel Barkow
- Federal Criminal Workload, Guilty Pleas, and Acquittals: Statistical Background by Ronald F. Wright
September 30, 2005
A notable acquitted conduct dodge from the DC Circuit
I often forget to check the DC Circuit website for new Booker opinions because that court issues opinions infrequently (at least compared to other circuits). But, a late-day check reveals that today the DC Circuit in US vs. Edwards, No. 04-3038 (D.C. Cir. Sept. 30, 2005) (available here), deftly discusses (and dodges) the issue of post-Booker consideration of acquitted conduct.
In Edwards, the defendant was acquitted on a firearms count at trial, but "the District Court found by a preponderance of the evidence that Edwards had possessed a firearm during the drug offense" and applied a two-level adjustment on that basis under the guidelines. Though the Edwards court ultimately orders the ever-popular limited remand to deal with a Booker plain error issue, it closes with this notable discussion of the acquitted conduct issue:
Edwards makes an additional Sixth Amendment claim — that the District Court denied his right to a trial by jury when it sentenced him based on conduct for which he was acquitted.... Edwards argues that, under Booker's holding, his acquittal on the gun possession charge precludes the District Court from finding that fact by a preponderance of the evidence and then using it to raise his sentence. The Supreme Court has upheld this practice against a Fifth Amendment double jeopardy challenge. See United States v. Watts, 519 U.S. 148, 157 (1997). The Court has not, however, determined whether the practice violates the Sixth Amendment. Cf. Booker, 125 S. Ct. at 754 (stating Sixth Amendment issue was not presented in Watts). Although Edwards raises a potentially important question, we need not address it because we have already determined to remand the record according to Coles.
Around the blogosphere on a friday afternoon
To close out an exciting week (at least for baseball fans), I see a lot of interesting items around the blogosphere:
- There are a lot of new posts on a lot of the Federal Defender Blogs, especially at the blogs of the Second Circuit, the Sixth Circuit, the Ninth Circuit, and the Eleventh Circuit.
- At INCourts, Michael Ausbrook has the goods here and here on the cert briefing coming from Indiana's Smylie case, which concerns the applicability of Blakely to consecutive sentencing.
- From How Appealing, this link connects you to a news story and an opinion from Nebraska which invalidates a sentence because the legislature went too far during a special session convened to respond to the Supreme Court's Ring ruling.
- Over at PrawfsBlawg, Kaimi Wenger asks in this post about the constitutionality of Texas judge's probation condition that a 17-year-old drug offender "not have sex as long as she is living with her parents and attending school."
- Professor Jack Balkin here is talking up blogs as scholarship (responding to The Faculty Blog forthcoming from the Chicago law faculty). Faithful readers might recall that I recently riffed here and here on this topic when guest-blogging at PrawfsBlawg.
Ninth Circuit uses amended footnote to uphold appeal waiver
In a case that keeps on giving, the Ninth Circuit today in US v. Cortez-Arias, No. 04-10184 (9th Cir. Apr. 18, 2005), amended (July 14, 2005), amended again (Sept. 30, 2005) (available here), greatly expanded a footnote in order to uphold a pre-Booker appeal waiver. Here's a selection from the Ninth Circuit's most recent work in Cortez-Arias:
Cortez-Arias ... knowingly and voluntarily waived the right to appeal every aspect of his sentence, except whether his earlier crimes were "crimes of violence." In exchange for his guilty plea and this waiver, Cortez-Arias received a promise of favorable sentencing recommendations from the United States....
We conclude that Cortez-Arias is bound by the terms of his plea agreement, and we decline to vitiate the terms of his bargained-for exchange with the government. The express and generally unrestricted waiver of appeal rights forecloses the objections now asserted by Cortez-Arias pursuant to Booker or Ameline. We join our sister circuits who have reached similar conclusions. [Citing Sahlin from 1st, Bradely from 6th, Parsons from 8th, and Rubbo from 11th.]
I am not certain if this is the first published opinion in which the Ninth Circuit has enforced a pre-Booker appeal waiver. If so, I am a bit troubled that the Court would use this means to reach a fairly consequential conclusion about the status of appeal waivers. (Recall that, in posts here and here, I have developed some arguments why appeal waivers, post-Booker, may be invalid on public policy grounds because they violate of the appellate review provisions of the Sentencing Reform Act.)
UPDATE: An astute reader has reminded me that the Ninth Circuit first upheld a pre-Booker appeal waiver way back in May in US v. Cardenas, 405 F.3d 1046 (9th Cir. 2005) (noted here). Apparently, Cardenas has been cited about 30 times in other opinions upholding appeal waivers since then, and so now the question is why didn't Cortez-Arias just cite Cardenas.
Following up the report of President Bush issuing 14 more pardons on Wednesday, former US Pardon Attorney Margaret Colgate Love has written these thoughtful comments praising the President for returning "to regular and frequent pardoning that had characterized federal practice until the Clinton administration." And, for a personal and poignant perspective on the pardons, this story from Georgia details that one of the recipients, who had been seeking a pardon for a decade, is in the last stages of Alzheimer's disease and may not fully understand that his name has been cleared 35 years after his last arrest.
September 29, 2005
Now that we have Chief Justice Roberts, who's next?
To celebrate the occasion of the swearing in of a new Chief Justice and the growing buzz over a new nominee (stories here and at How Appealing), I have assembled some recent posts about CJ Roberts and his possible new colleague:
ON THE NEW CHIEF:
- Speculating about Judge Roberts' view on criminal law issues
- Assailing the lack of criminal justice questions at the Roberts hearing
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
- Criminal justice in Roberts' written testimony
ON THE NEXT NOMINEE:
- Will the next SCOTUS nominee have any criminal law background?
- How would a Justice Gonzales or a Justice Thompson handle sentencing issues?
- A criminal law perspective on Janice Rogers Brown
- Does SCOTUS need a trial judge?
Eighth Circuit discusses scope of prior conviction exception
In a case with somewhat silly facts, the Eighth Circuit today in US v. Carrillo-Beltran, No. 04-3177 (8th Cir. Sept. 29, 2005) (available here) explained that a "court must be allowed to determine not only the 'fact of a prior conviction' but also those facts so 'intimately related' to the prior conviction to fall within the Apprendi exception." Of course, this ruling raises questions as to what facts are "intimately related" to a prior conviction to allow for judicial factfinding (which, perhaps, is the converse of the questions raised after the Supreme Court in Shepard cautioned against judges finding facts "too far removed from the conclusive significance of a prior judicial record.")
Have Blakely and Booker depressed federal prosecutions?
I have been speculating since last June that the legal disruptions caused by Blakely and Booker might impact federal prosecutions. My theory was that, with extra time consumed with re-writing indictments and dealing with new legal issues, federal prosecutors might not be able to initiate as many prosecutions as they tried to assess an uncertain criminal justice landscape. An interesting new report from the Transactional Records Access Clearinghouse (TRAC) on federal prosecutions seems to provide some empirical support for my theory.
The TRAC report actually carries the headline "New Justice Department Data Show Prosecutions Climb During Bush Years." However, this table of data shows that, while immigration and weapons prosecutions have grown considerably during the Bush Administration, the number of drug and white-collar prosecutions have remained fairly steady. And, critically for my Blakely/Booker theory, these numbers show a significant dip in drug and white-collar prosecutions in 2004 and a dip in all four of these major crime categories for the first-half of 2005. (These trends are all detailed in this effective chart.)
Of course, a lot of factors may account for these trends, and a bigger story might just be the overall growth in federal prosecutions over the last two decades (detailed in data here and this chart), although most of this growth clearly comes from a massive increase in immigration prosecutions in border districts. Nevertheless, the potential ripple effect of Blakely and Booker on the federal caseload is an important story, especially as policy-makers and others consider how to assess and respond to post-Booker developments.
More pardons from President Bush
As this AP report details, President Bush pardoned 14 persons on Wednesday. Based on the brief bios given in news reports, this gang of 14 is an eclectic bunch. TalkLeft notes here that four of the persons receiving pardons are drug offenders; White Collar Crime Prof Blog notes here that "only four appear to be white collar type cases." (The "only" adjective flows from the fact that, as detailed here, a majority of persons benefitting from President Bush's last group of pardons were white-collar offenders.)
Late last year, when President Bush issued a mere four pardons during the holiday season, this blog and others buzzed about Bush's stingy pardon practices. And yet, in response to a group of seven pardons from this past summer, former pardon attorney Margaret Love commented via this post that "the very fact that this President has begun issuing pardons on a fairly regular basis is encouraging." I suspect that Margy will again be encouraged by this latest curious, but sizeable, batch of pardons.
Here are some earlier posts on this interesting topic:
- More (minor) pardons from President Bush
- More insights on the recent Bush pardons
- Bush's stingy pardon practice
- More pardon buzz
- Media criticism of Bush's pardon practice
- The Washington Post on Bush's pardons
September 28, 2005
More strong work on the crack disparity issue
As a fitting follow up to the Seventh Circuit's recent discussion of the crack/powder disparity issue, I am pleased to report on (and make available for downloading below) the thoughtful and thorough recent opinion of US District Judge William Smith in US v. Perry, No. 04-089S (D.R.I. Sept. 20, 2005). Covering a lot of ground with many insights, Perry provides particularly extensive coverage of the crack issue and the approaches taken by district courts post-Booker. Here is a key portion of the opinion's introduction:
The Defendant urges this Court to vary from the Sentencing Guidelines and impose only the statutory minimum sentence. Resolution of this issue requires this Court to delve into the thicket of the debate over the sentencing discrepancies between crack and powder cocaine -- a debate that has simmered for many years but has been refueled recently by the Booker/Fanfan decision. For the reasons set forth in the second half of this memorandum, this Court finds that the crack/powder disparity cannot stand up to the scrutiny of analysis under 18 U.S.C. § 3553. Therefore, this Court will vary from the advisory sentencing range established by the Sentencing Guidelines and impose the statutory minimum sentence of 10 years.
And the second half of the opinion culminates with these insights:
The growing sentiment in the district courts is clear: the advisory Guideline range for crack cocaine based on the 100:1 ratio cannot withstand the scrutiny imposed by sentencing courts when the § 3553 factors are applied. This Court, too, will not blindly apply the Guideline range, for to do so would be to disregard the Supreme Court's directive in Booker/Fanfan to fashion a reasonable sentence in light of the § 3553(a) factors. As to the appropriate ratio to apply, this Court believes a 20:1 ratio (as suggested by the Commission in its 2002 report) makes the most sense.
Seventh Circuit publishes crack/powder decision
Though decided weeks ago, the Seventh Circuit today decided to "publish" its ruling in US v. Gipson, No. 05-1407 (7th Cir. Aug. 10, 2005), published (Sept. 28, 2005) (accessible here), which rejects the claim that "a sentence based upon the guidelines is unreasonable because the guidelines punish crack cocaine offenses too severely relative to offenses involving powder cocaine." In an appropriately nuanced ruling, the Seventh Circuit in Gipson explains (cites omitted):
The question in the present case ... is not whether after Booker a sentencing court may use the differential as a reason to impose a shorter sentence than the one recommended by the guidelines, but rather whether it is error for a court not to have taken the differential into account. Given the fact that we have routinely upheld the differential against constitutional attack, including equal protection claims, and, under the pre-Booker guideline system, rejected wholesale downward departures from the guideline on this basis, it would be inconsistent to require the district court to give a nonguideline sentence based on the differential.
To my knowledge, Gipson is the first published ruling on the crack issue, and I may have more to say about this outcome (and what it means for reasonableness review) in a future post. In the meantime, I have linked below some posts covering some notable district court work in this area:
Growing opposition to bill seeking further habeas restrictions
Thanks to How Appealing, I saw this LA Times article detailing that both the Judicial Conference of the United States and the ABA this week have sent letters to Senators opposing the proposed Streamlined Procedures Act, which could significantly limit habeas appeals. As previously noted here, the Campaign for Criminal Justice Reform has created this very helpful webpage about the legislation; there you can find the Judicial Conference letter and the ABA letter, as well as a lot of other information and links.
Here are some prior posts covering these issues:
- Hands off habeas
- An engaging (but incomplete) habeas debate
- Terrific habeas debate over at Debate Club this week
- Senate hearings on new habeas restrictions
- House hearing on death penalty and habeas bills
Sixth Circuit rejects effort to use mandate recall to achieve Booker retroactivity
Today, in US v. Saikaly, No. 01-4001 (6th Cir. Sept. 28, 2005) (available here), the Sixth Circuit issued an order which rejects a defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in early 2004. Here is the heart of the Sixth Circuit's discussion:
The defendant [asks] this court to recall its mandate and to reopen his prior appeal to this court, a procedural maneuver that would permit him to raise a Booker claim as part of that appeal. Although courts of appeals have the inherent authority to recall a mandate, such power should only be exercised in extraordinary circumstances because of the profound interests in repose attached to a court of appeals mandate....
Although this court has granted motions to recall the mandate in cases which were not yet final at the time the motion was filed, other courts of appeals which have addressed similar motions based upon Booker (or the earlier decisions in Apprendi and Blakely) have found no extraordinary circumstances warranting the recall of a mandate issued in a prior (and final) direct appeal. These decisions hold that the proper remedy to attack a sentence in a final criminal proceeding lies under § 2255, and the fact that such remedy is no longer available does not warrant a recall of the mandate. [Cites to cases from the 1st, 2d, 7th, and 10th Circuits.]
These decisions deny any avenue of relief under Booker to defendants whose direct appeals were final at the time that decision was rendered. Although the defendant may argue that there is an element of unfairness in this result, it is the same element found in any Supreme Court decision which announces a new rule applicable to criminal defendants with pending prosecutions or appeals, but which is not made retroactive to defendants whose cases are final. The incremental change in the law as evidenced by Apprendi, Blakely, and Booker simply is not the type of unforeseen contingency which warrants recall of the mandate to permit yet another round of appellate review.
Significantly, this Saikaly ruling does not mention the Ninth Circuit's recent ruling in Crawford which seemed to permit using motions to recall the mandate as a means to have Booker applied to cases that had become final before January 2005. As explained here and here, the Ninth Circuit's Crawford decision indicated that some defendants may obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.
September 27, 2005
Effort to Booker-ize safety valve rejected by 2d Circuit
The Second Circuit today in US v. Ramirez, No. 03-1280 (2d Cir. Sept. 27, 2005) (available here), rejected an effort to use Booker expand the application of section 3553(f)(1), which provides a so-called safety valve escape from the application of mandatory minimums. This introductory paragraph explains the issue, and the result, in Ramirez:
On appeal, Ramirez argues that the district court should have considered the Guidelines advisory for purposes of calculating his criminal history points. He also contends that section 3553(f)(1) itself, by virtue of its reference to and incorporation of a Guidelines term..., should be considered advisory post-Booker. Ramirez does not dispute the district court's determination ... that he had two criminal history points. Neither does he contend that the court's consideration of the fact of his prior New York State convictions for assault and for "Criminal Facilitation in the Fourth Degree" in determining his criminal history points violated the Sixth Amendment.... Instead, he asserts that the court erred in "follow[ing] the letter of the safety valve provision rather than its own assessment that the criminal history categorization of defendant over-stated the seriousness of his situation" because "the mandatory duty to apply the Guidelines [was] excised" by Booker. Appellant's Br. at 11. We are unpersuaded.
A notable pair from the 11th Circuit
Perhaps because all the circuit judges are distracted by the clerkship mania, we have not had many significant circuit rulings of late. But, adding some excitement to our Booker world, the Eleventh Circuit decided a pair of notable sentencing cases today: US v. Chau, No. 05-10640 (11th Cir. Sept. 27, 2005) (available here) and US v. Scott, No. 05-11843 (11th Cir. Sept. 27, 2005) (available here).
In Chau, the Eleventh Circuit discusses at length the possible application of Crawford at sentencing, noting that Crawford "may eventually be extended to the sentencing context, [but] that has not happened yet" and that "other circuit courts to consider this question have unanimously concluded that Crawford does not alter the pre-Crawford law that the admission of hearsay testimony at sentencing does not violate confrontation rights." The Eleventh Circuit also reiterated that Booker permits judicial factfinding to enhance sentences within an advisory guideline regime.
In Scott, the Eleventh Circuit rejects a claim that a sentence at the bottom of the guideline range is unreasonable. The Scott ruling is focused on the particular (unpleasant) facts at hand, but the Eleventh Circuit does speak more broadly at times about reasonableness review:
We now similarly and squarely hold that nothing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors....
Scott argues that the district court failed to place sufficient weight on his personal characteristics and history.... While the district court was particularly impressed by the seriousness of the offenses and the extremely young age of the intended victim, the sentence imposed also reflects the evidence presented by Scott in mitigation. Scott's 135-month sentence was at the low end of the Guidelines range, a range that takes into account Scott's offense conduct, his personal characteristics and history, just punishment, and adequate deterrence.[FN 5] Nothing in the record convinces us the sentence was unreasonable in light of the § 3553(a) factors. We are satisfied under the circumstances of this case the sentence was reasonable.
[FN 5] ... Since its creation, the Sentencing Commission has adopted, modified, and honed the Guidelines to take account the factors in § 3553(a).
Unreasonably disappointing en banc result in the 8th Circuit
As detailed in this post, back in June the Eighth Circuit decided to reconsider, en banc, the wisdom of US v. Christenson, No. 04-2084 (8th Cir. Apr. 13, 2005) (available here). Christenson was one of a big set of decisions in April in which the Eighth Circuit decided that reasonableness review under Booker was to be akin to review for abuse of discretion. In Christenson, the government filed a 5K1.1 departure motion and recommend a sentence of 216 months' imprisonment down from the otherwise applicable sentence of 240 months. But the district court sentenced Christenson to 60 months (even though defense counsel had proposed a sentence of 144 months), and the Eighth Circuit panel concluded this sentence "was not unreasonable."
The government moved for, and obtained, rehearing en banc in Christenson, and I was hoping the Eighth Circuit would use Christenson to expand on the meaning of reasonableness review after Booker. Today the Eighth Circuit handed down this one-sentence order in Christenson, which states: "On rehearing en banc, the district court's judgment is affirmed by vote of an equally divided court." What a let down, especially because the order does not even indicate which of the 12 circuit judges voted which way. And, to add to the disappointment, I presume we should not expect any forthcoming opinions detailing the reasons why the court was equally divided.
Little for sentencing fans in today's SCOTUS cert grants
As always, SCOTUSblog is the place to go for details on the eleven new cases that the Supreme Court agreed to hear today (the official Order List is available here). This post from Amy Howe provides a case-by-case run down of the issues raised in the cases granted cert.; this post from Lyle Denniston provides a thematic summary.
Lyle's post details that the "new cases to be heard include four on criminal law issues." That group includes one habeas procedure case, two Fourth Amendment cases, and one trial procedure case. The most interesting of this bunch for sentencing fans may be Samson v. California, 04-9728, which, as Lyle explains, concerns "whether police are barred from carrying out a warrantless search of a person on parole, when there is no suspicion of criminal wrongdoing so parole status is the sole reason for the search." (Notably, the defendant in the Samson case raised Blakely issues in the California appellate courts, but it does not appear that those issues are to be before the Supreme Court.)
As noted in this post by Tom Goldstein, it is likely that the High Court will grant cert. in some additional cases on October 11. I suspect, however, that the Court is in no rush to confront the many challenging post-Blakely and post-Booker questions that lower courts are struggling through. As I noted in this post, I think the validity and scope of the "prior conviction" exception is the most pressing and important issue needing to be resolved, but it seems quite possible that the Court may take up some other Blakely/Booker issues first (such as the consecutive sentencing issue that has Michael Ausbrook's attention at INCourts).
A judicious retort to AG Gonzales' proposed Booker fix
There has already been a lot of commentary critical of AG Alberto Gonzales' advocacy of a legislative response to Booker in the form of "the construction of a minimum guideline system." (Some editorials assailing the Gonzales proposal are noted here and here and here and here; the speech in which Gonzales set out his proposal was first discussed here, and followed by commentary here and here and here.) To the list of critiques can be added this thoughtful commentary in the National Law Journal, entitled "AG's Misguided Proposals," authored by US District Judge Lynn Adelman and his clerk Jon Deitrich.
Echoing some points recently developed by ND Ohio Chief Judge James Carr in his recent article in the latest issue of the Federal Sentencing Reporter, Judge Adelman and Deitrich assert that the Booker remedy is "manifestly more fair than the mandatory regime and is working well," and they call the Gonzales proposal "unbalanced" and "constitutionally suspect." The entire commentary merits a close read, and here are the closing paragraphs:
The advisory guideline regime should not be evaluated based on anecdotes. However, the question of how it should be judged is an important one. We believe that the appropriate standard is not whether the average sentence is more severe or more lenient than it was previously, or how many sentences remain within the guidelines, but rather whether in individual cases judges are doing justice. To answer this question, policymakers and scholars must carefully consider the quality of judicial reasoning underlying the sentences imposed, a factor that often goes unmentioned during the debate about sentencing. This task is not simple, and it will not be accomplished over night.
In the meantime, the attorney general's calls for change do not advance the discussion. His speeches seem to reflect DOJ's anxiety about the fact that, under the advisory guideline system, judges actually have the authority to determine defendants' sentences. However, under our system of justice, judges, not prosecutors, are supposed to sentence defendants. Unless the attorney general has solid evidence that judges when sentencing are not sufficiently taking into account public safety (which he does not), he should refrain from calling for radical changes in our sentencing system.
September 26, 2005
A Reader's Digest version of three strikes critique
Thanks to this post at TalkLeft, I came across this interesting article attacking three-strikes laws, which appears in the October 1 issue of Reader's Digest. The article is entitled "Petty Crime, Outrageous Punishment; Why three-strikes law doesn't work" and is authored by Carl M. Cannon. Also interesting is this public comment page at the Reader's Digest website; most of the comments attack a perceived liberal bias in the article.
Monday around the blogosphere
A blog round-up seems in order, especially because the CrimProf Blog has a number of sentencing-related items that should not be missed:
- On the sex offenders front, CrimProf reports here on an interesting conference at William Mitchell College of Law examining forensic assessments of sex offenders, and the blog also provides an exclusive "op-ed" by Margy Love concerning the new national sex offender registry.
- Also, thanks to CrimProf Blog, I saw this fascinating story about a commutation hearing that prompted Nebraska's attorney general to complain that tough-on-crime attitudes may be getting "ridiculous."
- Over at INCourts, this thoughtful post details why it seems unlikely that the Supreme Court will want to take up the issue of whether the Apprendi-Blakely line of cases applies to consecutive sentencing.
- Over at the ASC Blog, this post explains why incarceration not only impacts prisoners' right to vote, but also enables the "free population [to] mobilize the electoral power that the inmates are blocked from using." Coincidentally(?), this issue is the subject of this NY Times editorial today.