November 4, 2005
Should we (and could we) require prosecutors to explain plea deals?
As detailed in this story, in Utah some controversy has emerged as a result of questionable plea deals in a few high-profile cases. In response, the Provo Daily Herald has made an interesting and thoughtful argument here that prosecutors should have to provide a public account of their plea choices:
Prosecutors should go ahead and make their deals as they see fit. But they should be required to explain why -- especially in cases where a plea deal gives the impression that a suspect is getting off too easily. To the public, a deal may seem to give preferential treatment or suggest that prosecutors are not aggressively doing their jobs....
[W]hile prosecutors may have good reasons for offering or accepting a plea deal, it doesn't bolster their credibility if the public is not told why. The courts are already shrouded in too much secrecy, and odd-looking deals don't help. A little public communication would do wonders for public understanding of the justice system and enhance the credibility of prosecutors.
Utah already requires judges to explain when they deviate from state sentencing guidelines in drunken driving cases. The explanations are a good way to ensure that justice is being satisfied.
The same should be true for prosecutors when the make plea deals. Prosecutors are not private attorneys who represent only one party. They represent the people of the community, and they should explain their reasoning to this important client.
Especially after participating in this great conference at Arizona State University, I continue to believe that, even after Booker, the exercise of prosecutorial discretion in the federal system remains the Achilles heel in all reform efforts. Would a requirement of explanation for any and all prosecutorial "sentencing choices" improve the exercise of prosecutorial discretion and improve the federal sentencing world?
Will having a "tough" sentencing judge impact Lewis Libby's plea considerations?
As I have spotlighted in a number of prior posts linked below, the sentencing and plea dynamics surrounding Lewis Libby in the CIA leak case are very intriguing. Adding to the intrigue is news (from TalkLeft noting this NY Times article) that the judge assigned to Libby's case, District Judge Reggie B. Walton, is "known for handing down tough sentences."
Having a tough judge could cut two ways as Libby and his defense team consider the possibility of a plea. Libby might be more inclined to plead guilty because he may now have to fear an especially long sentence if he is convicted after a trial. Or, Libby might be less inclined to plead guilty because he may now have to fear significant prison time even if he takes a plea.
On a related front, Dan Markel over at PrawfBlawg has this interesting post exploring whether Libby's past public service ought to play a role at any eventual sentencing.
- Has Patrick Fitzgerald done guideline calculations?
- Sentencing dynamics in CIA leak investigation
- More on Lewis Libby's possible plea and sentencing dynamics
- Still more on Libby's plea and sentencing dynamics
UPDATE: I have just seen this ABA Journal e-Report article effectively discussing the basic plea and sentencing issues raised in the Libby case.
Potent commentary on Olis case
Today's Houston Chronicle has this potent commentary about the Jamie Olis case in the wake of the Fifith Circuit's reversal earlier this week of his 24-year federal sentence (prior coverage here and here). Here are some snippets:
We can all take comfort in Jamie Olis' reprieve. It doesn't make us soft on white-collar crime. It makes us tough on fairness. The Olis case has been an example of justice gone awry, of collective anger that seemed to well up and envelop one individual who played a small role in the den of deception that was Houston energy trading in the Enron era. It was as if Olis were ordered to pay for many sins that were not his own....
A jury found Olis guilty, and for that he should pay a price. He has. Olis, who was ordered to report to prison in May 2004, has already served 18 months. Lake hasn't scheduled a hearing on a new sentence, and by the time the process is done, Olis will be closing in on two years. Lake should consider time served and set Olis free.
More state disparity on juvenile offenses and prior conviction exception
Divergent recent rulings from Oregon and from Ohio have revealed the considerable state court dickering over whether juvenile adjudications come within the "prior conviction" exception of the Apprendi-Blakely rule. And, thanks to this post at INCourts about an Indiana lower court decision in Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. Oct. 31, 2005) (available here), I see that disparate approaches to this issue can emerge within one state as well as across states.
Notably, the Indiana Supreme Court should soon address the status of juvenile adjudications in Indiana through Ryle (discussed here and here). But the Pinkston court could not await the Indiana Supreme Court's guidance. And, notably, the Pinkston court, in contrast to the work done by the lower court in Ryle, holds that "juvenile adjudications are not prior convictions under Blakely/Apprendi."
Prior coverage of this issue and other issues surrounding the prior conviction exception can be found at this link.
November 4, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
November 3, 2005
Alito around the criminal justice blogosphere
If recent poss here and here did not sate your Alito appetite, still more discussion of Judge Alito work on criminal justice mattes can be found in interesting recent posts at TalkLeft and Crime & Federalism. Relatedly, it appears that the Alito confirmation hearings won't take place until January, and thus we will all have at leas two more months to fine-tooth-comb Judge Alito's background and record.
Interesting HIV sentencing decision from the Fifth Circuit
Having safely arrived in Sun Devil land for this conference at Arizona State University on Friday, a great hotel connection has allowed me to find an interesting sentencing decision from the Fifth Circuit today. Here is the opening paragraph of US v. Castillo, No. 03-20955 (5th Cir. Nov. 3, 2005) (available here):
The United States, Plaintiff-Appellee and Cross-Appellant in this matter, appeals the district court's decision to depart downwardly from the sentencing range established by the UNITED STATES SENTENCING GUIDELINES on the grounds that: (1) the defendant's HIV-positive status constituted an extraordinary medical condition warranting a downward departure under U.S.S.G. § 5H1.4; and (2) comments made by the prosecutor at sentencing about the defendant's HIV-positive status were malicious and endangered the defendant's safety, thereby justifying a departure under § 5K2.0. For the following reasons, we find that the district court abused its discretion when it departed downwardly on these bases, VACATE the district court's sentence, and REMAND this case for resentencing.
Castillo is a very interesting ruling on both the facts and the law. Here are some additional passages from the opinion:
[F]ollowing the logic of [our prior precedents], and our sister circuits, we conclude that a defendant's HIV-positive status alone does not constitute an extraordinary medical condition warranting a downward departure under § 5H1.4, and we find that the district court's departure on this basis, which did not advance the goals of § 3553(a)(2), constituted an abuse of discretion....
[B]ased on our review of the record, the district court's finding that the prosecutor acted deliberately and maliciously [when mentioning the defendant's HIV status] leaves us with a firm conviction that a mistake has been committed and is, therefore, clearly erroneous. Because the factual findings supporting the district court's downward departure under § 5K2.0 are clearly erroneous, the district court abused its discretion by downwardly departing under § 5K2.0.
On the road again...
My traveling ways continue with a trip out west again to participate in this conference at Arizona State University on Friday. Though I hope to get on-line while away, I expect blogging will likely be light through the weekend. Fortunately, with a manic Monday, the great Stanford Law Review issue now on-line, and lots of other action on so many sentencing fronts this week, there is plenty to read without more of my blog blather. (And, for any sentencing gluttons, I have made available for download below my (printer-friendly) Word back-up of SL&P's posts through September and October.)
Still more on Judge Alito's criminal justice record
As I noted here, Judge Alito's work on criminal justice matters is already the subject of considerable scrutiny. In addition to matters discussed in prior posts linked below, consider this article from the Criminal Justice Legal Foundation which defends Judge Alito's work upholding a death sentencing in the Rompilla case and assails the Supreme Court's reversal of Judge Alito's decision.
Relatedly, this New York Times article reviews Judge Alito's dissenting opinions on the Third Circuit and concludes that he "generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions."
- Alito and the death penalty
- More on Alito the prosecutor and Alito on the death penalty
- A bit more Alito aliture
- Will Alito continue with the Constitution Project's Sentencing Initiative?
The government's argument against crack cracking the guidelines
As detailed in this recent National Law Journal article, a number of district courts have used their Booker discretion to adjust downward the 100-to-1 sentencing disparity between crack and powder cocaine under the federal guidelines. (Many of these ruling are linked at the end of this post.) As of yet, no circuit has ruled on whether the resulting sentences that deviate from the guidelines are reasonable, but I have heard that this issue is being appealed by the government nationwide.
Filling in the story, I recently receive a copy of a government brief recent filed on this issue in the First Circuit case of US v. Pho, No. 05-2455. The government's opposition to the sentence adjustment based on the crack disparity is quite interesting, and I provide the brief for download below. Here are a key passages from the brief's introduction:
The issue on appeal is not whether it was reasonable for the district court to deviate from the advisory Guidelines range under the particular circumstances of the defendants' cases, but whether, in all crack cocaine cases, it is reasonable for courts to adopt their own across-the-board rules regarding the appropriate crack/powder sentencing ratio.... The identical issue is now pending before the Second, Fourth, Sixth, Eighth, and Eleventh Circuits....
The district court's categorical rule is unreasonable as a matter of law because it: (1) rejects Congress's express judgment concerning the appropriate level and relative severity of penalties for crack offenses; (2) would lead to significant and unwarranted sentencing disparities; and (3) conflicts with (a) the Supreme Court's admonition to take the Guidelines into account in all cases, (b) the case-specific focus of the sentencing statutes, and (c) traditional principles of discretionary decision-making.
For coverage of some of the decisions on this issue from the blog, see:
November 2, 2005
About the size of the population of Virginia
Thanks to TalkLeft's post here, I see that DOJ's Bureau of Justice Statistics has released "Probation and Parole in the United States, 2004," which reports on "the number of persons on probation and parole, by State, at yearend 2004 and compares the totals with yearend 1995 and 2000." The full report, which has lots and lots of interesting numbers, can be accessed here.
This news account of this new BJS report spotlights some interesting racial dynamics:
Whites made up 56 percent of the probation population and only 34 percent of the prison population, according to Wednesday's report and another Justice Department report released last month. "White people for whatever reason — seem to have more access to community supervision than African Americans and Hispanics," said Jason Ziedenberg, executive director of the Justice Policy Institute, which promotes alternatives to incarceration.... Blacks, he noted, comprised 30 percent of probationers and 41 percent of prisoners at the end of 2004. Hispanics made up 12 percent of the probation population and 19 percent of the prison population
As this official press release indicates, the BJS report calculates that the "number of adults in prison, jail, or on probation or parole reached almost 7 million during 2004." To put that number in some perspective, that's more persons on probation and parole than live in 38 of the 50 states, and is about the number of persons that live in Virginia (which is the 12th most populous state).
First Circuit speaks to fact bargaining and a lot more
Gosh, when it rains it pours. After relatively quiet Booker times in the circuits lately (save for the recent Olis decision), today we there have been major sentencing rulings from the Seventh Circuit and the Second Circuit and now the First Circuit in US v. Yeje-Cabrera, No. 03-1329 (1st Cir. Nov. 2, 2005) (available here). Appellate Law & Practice in this post at provides some of the basics of Yeje-Cabrera, and here are parts of the First Circuit's own introduction to the main sentencing issues in the case:
In order to sanction the government for what it considered to be impermissible "fact bargaining," the district court declined to follow the Sentencing Guidelines. This was error. The fact bargaining was the government's willingness during earlier unsuccessful plea negotiations to recommend a lower sentence when the facts known to it at the time, or so the court found, justified a higher sentence. The court declined to give a warranted firearms enhancement and did give an unwarranted minimal-role reduction. The court also concluded, mistakenly, that its role as a fact finder with respect to drug quantity for sentencing purposes had been written out of the Sentencing Guidelines by the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Second Circuit applies all the big Blakely exceptions
Thanks to Howard, I see that the Second Circuit today in US v. Estrada (Herredia), No. 02-1544 (2d Cir. Nov. 2, 2005) (available here), has upheld a mandatory minimum sentence of life imprisonment by relying upon both the mandatory minimum exception (Harris) and the prior conviction exception (Almendarez-Torres) to the Apprendi-Blakely rule about judicial factfinding. Here is the court's own summary of its holding: "We hold that prior felony drug convictions triggering a mandatory minimum sentence of lifetime imprisonment under § 841(b)(1)(A) need not be charged in the indictment or proved to a jury beyond a reasonable doubt." And here is the heart of the court's work:
We recognize that sentencing factors typically "channel judicial discretion" within the range authorized by the jury's verdict, increasing the minimum sentence and therefore narrowing the range within which a judge may exercise sentencing discretion. [Harris, 536 U.S.] at 567. In cases such as this one, where the mandatory minimum is equivalent to the statutory maximum, the trial judge is left with no discretion in determining an appropriate sentence once he or she finds that the mandatory minimum applies. While this circumstance deprives the judge of sentencing discretion, the finding nonetheless restrains the judge's power within the outer limits set by the applicable statutory maximum, and the finding thus does not increase the penalty "beyond the prescribed statutory maximum." Apprendi, 530 U.S. at 490 (emphasis added). We thus conclude that the increasing mandatory minimum sentences for prior felony drug convictions in this case fit within the Harris paradigm.
Moreover, as we held in United States v. Santiago, 268 F.3d 151 (2d Cir. 2001), the Supreme Court's ruling in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that recidivism is a sentencing factor rather than an element of the crime, remains good law, and it is not within the purview of the Courts of Appeals "to anticipate whether the Supreme Court may one day overrule its existing precedent."... While we acknowledge a tension between the spirit of Booker — that all facts that fix mandatorily a defendant's sentence should be found by a jury or admitted by the defendant — and the Supreme Court's decision in Almendarez-Torres, the "prior conviction" exception nonetheless remains the law.
Howard comments, "It will be interesting to see whether the U.S. Supreme Court ever agrees to take up one of these cases." To this astute comment, which I endorse, I would add that it is interesting to speculate what Chief Justice Roberts or a Justice Alito might think of these doctrines.
Thorough discussion of reasonableness in Seventh Circuit
The Seventh Circuit, which had expounded upon the concept of Booker reasonableness more than any other circuit, today continued to unpack this nebulous standard in upholding a 27-year sentencing in a child pornography case. In US v. Newsom, No. 03-3366 (7th Cir. Nov. 2, 2005) (accessible here), the court, after a prior limited remand, thoroughly explores the defendant's arguments that his long sentence was unreasonable. The Newsom court concludes with this explanation:
We note finally that under both the applicable statutes and the advisory Guidelines, Newsom could have received an even longer sentence. As we noted earlier, his Guidelines range was 292 to 365 months; his sentence fell in the middle of that range. Although it might have been useful if the court had said a little more about the apparently exceptional severity of Newsom's sentence, our examination of this question has satisfied us that it was not great enough to require a finding of unreasonableness for a sentence that falls within a properly calculated Guidelines range. See Mykytiuk, 415 F.3d at 608. We therefore find that Newsom's sentence was not the result of plain error. The district court's conclusion that this was a reasonable sentence under all the circumstances is AFFIRMED.
Though aspects of the Seventh Circuit's analysis of reasonableness might be contested, the court merits praise for such a careful and thorough consideration of this question. In sharp contrast, the Eighth Circuit today in US v. Zuleta, No. 05-1348 (8th Cir. Nov. 2, 2005) (available here), a case involving a seemingly small time drug courier, disposed of a Booker reasonableness claim with this one simple phrase: we "further find the 110-month sentence is not unreasonable when considered in light of the 18 U.S.C. § 3553(a) factors."
More on Alito the prosecutor and Alito on the death penalty
As I predicted here last week when the Alito buzz started, Judge Alito's criminal law background ensures that pre-hearing debate and the confirmation hearings will focus on criminal justice issues a lot more than we saw with Harriet Miers and with John Roberts. Consider this proof:
- This NY Times article discusses at length Sam Alito's career as a prosecutor.
- This article from the Philadelphia Inquirer discusses Judge Alito's work in death penalty cases while on the Third Circuit.
Lots more coverage of Olis sentence reversal
The Fifth Circuit's recent reversal of the 24-year federal sentence of former Dynegy executive Jamie Olis continues to capture media attention through new articles in USA Today and the Houston Chronicle and the Wall Street Journal. All three articles spotlight in various ways the potential impact of the Olis ruling on other white-collar prosecutions and sentencing.
Notably, the WSJ article closes with this intriguing quote from the prosecutors in the case: "We will advocate strongly for a sentence that fairly reflects his fraudulent conduct." This quote confirms my instinct, previously discussed here and here, that the Olis resentencing dynamics (especially in light of Booker) should be very interesting to watch.
November 1, 2005
Why some defendants hope Alito is like Scalia
In this piece at Slate, Robert Gordon explains what readers of this blog (and students of Blakely) already know: from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad. As Gordon's piece highlights, Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.
Of course, as to the application of the Eighth Amendment, defendants almost never get a sympathetic ear from Justice Scalia. But the same was true not only for Chief Justice Rehnquist, but also for Justice O'Connor (except in the occassional death penalty case). Moreover, as detailed in this fascinating paper by Ward Farnsworth, Justice Scalia's principles have led him to apply the rule of lenity more often than any of his current colleagues.
For these reasons, I have previously explained why criminal defendants should hope that Chief Justice Roberts is in the mold of Scalia rather than in the mold of Rehnquist. These same defendants should have the same hopes for a Justice Alito (although I fear that both Alito and Roberts could end up quite Rehnquistian on criminal justice matters). Indeed, given the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, if Justices Alito and Roberts were to embrace Justice Scalia's perspectives on jury trial rights, Blakely's reach and impact might ultimately be even broader than anyone has predicted.
SLR issue on federal sentencing now on-line
In recent posts here and here, I have lavished praise on the October symposium issue of the Stanford Law Review, which brings together leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform." (Of course, I'm a bit biased because my offense/offender article appears in the issue.)
During my recent Monterey trip, I had the chance to read the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller. That introduction is a masterpiece; it effectively sets up the articles that follow and is full of astute insights about modern federal sentencing dynamics. And, joyfully, this page now reveals that the Stanford Law Review has made fully available on-line all 18 article from its sentencing issue.
As I suggested in this post about brewing Booker fixes, I wish every members of Congress could be required to read this entire SLR issue (as well as the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?") before moving forward with any sentencing legislation. And everyone else, while taking in all this great sentencing scholarship, should take up the opportunity, discussed more fully in this post, to author a short commentary for FSR addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".
A reasonableness-free ruling from the 11th Circuit
In a detailed ruling that covers a number of issues, the Eleventh Circuit today in US v. Moriarity, No. 04-13683 (11th Cir. Nov. 1, 2005) (available here), affirms in substance (but remands for some clarifications) a sentence of 20 years imprisonment and a lifetime of supervised release. The interesting aspects of Moriarity include (a) the court's conclusion that the government met its burden of proving preserved Booker error to be harmless beyond a reasonable doubt, and (b) the court's rejection of the claim that "the district court's imposition of a lifelong term of supervised release constitutes cruel and unusual punishment in violation of the Eighth Amendment."
An interesting dog not barking in Moriarity is reasonableness, which is of course the purposed standard of review for sentences after Booker. Given the limited reach of the Eighth Amendment in non-capital cases under current SCOTUS doctrine, I was not at all surprised with the 11th Circuit's rejection of the claim that the imposition of a lifelong term of supervised release constitutes cruel and unusual punishment. But I was surprised that the opinion in Moriarity does not discuss or even mention whether the appealed sentence was reasonable under Booker.
Media coverage of reversal of Olis sentence
The media has picked up on Fifth Circuit's decision late yesterday to reverse the 24-year federal sentence of former Dynegy executive Jamie Olis (which I discussed here late last night). The Houston Chronicle has this basic account, and this Bloomberg news story provides a lot more background about the case. Also, the blogosphere continues to cover the Fifth Circuit's decision very well: in addition to Tom Kirkendall's comments here (which have engedered interesting reader comments), you can now get thoughtful takes from Larry Ribstein here and from Ellen Podgor here.
In the Bloomberg story, I am reminded that two other "former Dynegy employees, Gene Foster and Helen Sharkey, pleaded guilty to reduced charges in exchange for five-year sentences." I suspect that these sentences will serve as notable benchmarks in what should be a very interesting Booker resentencing. I can imagine the government will argue that Olis should not get a sentence less than these other defendants who pleaded guilty, and it seems likely the district judge will be mindful of such comparative sentencing realities when conducting Booker analysis.
Around the blogosphere
Interesting times bring lots of interesting sentencing items around the blogosphere:
- Jonathan Soglin has a number of interesting new posts at Criminal Appeal, and this post updating the state of state Blakely cases in the Supreme Court is a must-read.
- TalkLeft has a pair of interesting posts here and here exploring what a Justice Alito might mean for SCOTUS criminal cases.
- Tom Kirkendall at Houston's Clear Thinkers has additional comments here on the Fifth Circuit's reversal of Jamie Olis' sentence (which I discussed here late last night).
- The Second Circuit blog here laments the Second Circuit's recent decision to "uphold as 'reasonable' the BOP's odd & stingy interpretation of the good-conduct time statute."
- Votelaw and TalkLeft both note a recent Iowa court decision which upheld Iowa Governor Tom Vilsack's executive order restoring voting rights to all felons who have served their state sentences.
Alito and the death penalty
As detailed in this post, Justice O'Connor's "evolving skepticism about capital punishment" during her tenure on the Supreme Court seemed to shift her from a fairly consistent vote to uphold death sentences to an unpredictable vote in capital cases. And, as further discussed in this post, her successor could have a profound impact on the Supreme Court's capital sentencing jurisprudence.
As detailed in this interesting article from Kansas, Kansas Attorney General Phill Kline issued a statement in support of Alito's nomination which suggests he expects Alito to vote to uphold the constitutionality of Kansas' death penalty (which is before SCOTUS in Kansas v. Marsh discussed here and here and here):
"The confusion and uncertainty injected in Kansas criminal law by recent Kansas Supreme Court decisions can be remedied by a United States Supreme Court decision deriving from the December 7th argument in the Marsh case," Kline said. "I urge the Senate to affirm this clearly qualified jurist."
Rebecca Woodman, a Kansas defense attorney who will be arguing against Kline in the death penalty case, said she didn't know what to make of the attorney general's statement. "I guess he means if Alito is confirmed, he'll be on his side," said Woodman, who represents convicted killer Michael L. Marsh II.
As I first noted in this post, there is a basis to predict Alito may shift the Supreme Court's capital sentencing jurisprudence. Alito's most recent major opinion in this area involved the reversal of a grant of habeas due to ineffective assistance in Rompilla v. Horn (available here). That decision was ultimately reversed 5-4 by the Supreme Court in Rompilla v. Beard (available here), with Justice O'Connor serving as the key swing vote. More background on this case and Alito's ruling can be found in this recent newspaper article.
Manic Monday recap
I predicted a manic Monday, and the day did not disappoint. Of course, the nomination of Sam Alito was the biggest news of the day. But, hoping that other notable events won't get completely overshadowed, below I have placed links to other Monday happenings first:
SCOTUS DEVELOPMENTS AND COMMENTARY
BOOKER DEVELOPMENTS AND COMMENTARY
- Jamie Olis sentence overturned by the 5th Circuit!
- Of sentencing note from the Eighth Circuit
- Will Alito continue with the Constitution Project's Sentencing Initiative?
EXPLORING IF ALITO IS NEATO
Jamie Olis sentence overturned by the 5th Circuit!
More than eight months after oral argument, the Fifth Circuit late on Monday finally resolved the appeal of Jamie Olis, who received a severe 24-year sentence for his role in the Dynegy fraud and whose case has been watched closely by me (see here and here) and many others. In an opinion by (SCOTUS bridesmaid?) Judge Edith Jones, the Fifth Circuit in US v. Olis, No. 04-20322 (5th Cir. Oct. 31, 2005) (available here) affirmed Olis' conviction, but reversed his sentence.
The decision in Olis is quite interesting because Judge Jones first declares that Olis had preserved his constitutional claims and that the government could not show that Booker errors were harmless. At this point, the Olis court could have simply remanded for resentencing under Booker. However, the court instead chose to "review the specific sentencing issues that have arisen in this case and provide an analytical framework to aid the district court in resentencing."
The Olis court then engages in a thorough discussion of loss calculations (which dictated Olis' long sentence in the district court) to reach the conclusion that "the district court, faced with a 'cook the books' fraud, overemphasized his discretion as factfinder at the expense of economic analysis." The Fifth Circuit thereafter suggests that "attributing to Olis the entire stock market decline suffered by one large or multiple small shareholders of Dynegy would greatly overstate his personal criminal culpability."
Though overturning the district court's loss calculation, the Olis court affirms other guideline determinations made at the initial (pre-Booker) sentencing, and it does not speak to how this case should now be examined in a post-Booker world. The decision concludes simply by stating Olis "must be resentenced in accordance with Booker's overall standard of reasonableness after the court 'considers' the guidelines including a recalculation of the amount of loss for which Olis should be held responsible."
In light of new Booker realities and the tough sentences we have seen in some white-collar cases, this will be a very interesting case to watch at resentencing. I will be intrigued to see what kind of sentence the government and defense counsel recommend, and what sentence the district judge ultimately imposes.
Of sentencing note from the Eighth Circuit
Contributing to the manic Monday, the ever-active Eighth Circuit, which had been somewhat quite on the Booker front over the last week or so, jumped back into Booker action with a few notable sentencing rulings on Monday.
Two of the opinions — US v. Norman, No. 02-3196 (8th Cir. Oct. 31, 2005) (available here) and US v. Zavala, No. 05-1355 (8th Cir. Oct. 31, 2005) (available here) — do not break any new ground, but they spotlight the critical consequences between review for plain error and review for harmless error. The defendant in Norman arguable has a better case on the equities, but he does not prevail on appeal because of the Eighth Circuit's tough plain error standard; the defendant in Zavala does secure resentencing because the government could not show the Booker error was harmless.
A third opinion, US v. Meyer, No. 04-4166 (8th Cir. Oct. 31, 2005) (available here), seems to break some new ground by holding that "[j]ust as it is error to impose a prison term based on the mistaken view that the guidelines mandate it, it is also a Booker error to impose a fine on the same basis." However, the exact rationale and reach of this holding is debatable. Also debatable in Meyer is the court's decision to order a Booker remand to correct a fine determination while apparently not allowing the district court to revisit its associated Booker-violative imprisonment term.
October 31, 2005
Interesting death penalty flip-flop in Japan
This interesting news item from Japan concerning the administration of the death penalty caught my eye:
New Justice Minister Seiken Sugiura said Monday he would not sign any orders for executions, but later retracted his comments. Sugiura, a licensed lawyer who previously served as vice chairman of the Tokyo Dai-Ichi Bar Association, also said he believes the social trend is for the eventual abolition of capital punishment.
He said he will not sign such orders because of his personal "philosophy." He later issued a statement, however, in which he said his remarks do not refer to implementation of his function as justice minister, effectively withdrawing them.
A bit more Alito aliture
Both the media and the blogosphere are, of course, providing plenty of Alito nourishment. Here are some of the items I think sentencing fans might find most interesting:
- This AP article discusses in depth Alito's work as a prosecutor before becoming a judge.
- At White Collar Crim Prof Blog here, Peter Henning looks at Alito's work in the white-collar arena.
- Mike at Crime & Federalism here asks the interesting question "has there ever been a Supreme Court so filled with intellectual heavyweights?"
For broader background, the ACS blog has this bio with lots of links, and Is That Legal? and PrawfsBlawg have intriguing insights. Also, the NY Times here has lots and lots of blog links (including to this little ole' blog). To have it all in one place, below is my recent Alito commentary:
- Will Alito continue with the Constitution Project's Sentencing Initiative?
- Alito it is ... this should get interesting
- Jumping on the Alito bandwagon
- Serious Justice Alito buzz
Proof that Roberts would support instant replay?
With umpire metaphors all the vogue, I am inclined to read the interesting penultimate paragraph of the Supreme Court's decision today in Eberhart v. US, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), as an indication that Chief Judge Roberts and the Court he now leads might support the use of instant replay if judging a sporting event. Here's the paragraph in Eberhart that caught my eye:
We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase "mandatory and jurisdictional" has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review.
This fascinating compliment for the work of the Seventh Circuit (even as it was reversing) suggests CJ Roberts is a big fan of judicial transparency that facilitates SCOTUS review. It also suggests that the circuit courts should be especially wary about "burying" issues through summary dispositions. Apparently the Roberts Court, as evidenced by all four of its dispositions so far this Term, is going to try to take a close second look at every case that comes its way.
Notable SCOTUS action today
Continuing a manic Monday, the Supreme Court issued a few notable orders and opinion this morning. This post at SCOTUSblog provides the highlights of the action reflected in this order list, and the new opinions already appear here on the Supreme Court's official website.
The big news from the order list in the criminal justice arena is the Court's decision to take up two cases with follow-up Crawford issues. For sentencing fans, the order list includes one Booker GVR, as well as a whole bunch of cert. denieds. Among the cert. denieds, I noticed the Smylie case from Indiana, which raised Blakely's applicability to judicial determinations in support of imposing consecutive sentences. (As detailed in posts here and here, Michael Ausbrook at INCourts has been following the Smylie case closely.)
The two per curiam opinions issued today continue the new Roberts Court's trend of deciding a number of (little?) criminal justice issues through per curiam summary dispositions. In Kane v. Espitia, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), the Court overtuerned Ninth Circuit's grant of habeas on AEDPA grounds by saying that the Supreme Court's own precedent did not "clearly establish" a prisoner's constitutional right of access to a law library.
In Eberhart v. US, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), will excite only proceduralist through it ultimately results in a loss for federal prosecutors. The most interesting facet of the case, in my view, are comments in the penultimate paragraph, which I will discuss in a separate post.
Will Alito continue with the Constitution Project's Sentencing Initiative?
As noted in this Friday post, Judge Alito is a member of the Constitution Project's bipartisan Sentencing Initiative group. That group, under the leadership of former Reagan AG Ed Meese and fromer Clinton Deputy AG Phil Heyman, has been looking at the the post-Blakely and post-Booker world for the last 16 months in an effort to develop "specific, consensus recommendations for revising sentencing laws to comport with the new constitutional rules." As this mission statement further explains, "[t]he committee's work is focused on improvements in federal sentencing laws, especially in light of state experiences." A complete list of the group's membership is here, and my prior posts on the work of this group can be found here and here and here.
Though I do not know about the specifics of Judge Alito's efforts with the Constitution Project's Sentencing Initiative, I can confidently state that his involvement in this project means that he has given more thought to Blakely, Booker and broader sentencing reform issues than anyone else on any of President Bush's short lists. It also has me wondering whether Judge Alito will continue his work on this project; I believe the group is about to release a large report as a follow-up to its recent announcement of "Principles for the Design and Reform of Sentencing Systems" this past summer (basics here, commentary here).
I hope Judge Alito continues to serve on the Constitution Project's Sentencing Initiative. His service to date suggests there is no ethical conflict with a sitting judge participating in a policy discussion of sentencing issues even when related legal issues could arise in his court. Consequently, I see no ethical reason why Judge Alito should not continue to play a role in the very important work being done by the Constitution Project's Sentencing Initiative. His involvement in this bipartisan project highlights the importance of putting the concerns of good government above partisan bickering.
UPDATE: Chris at Law Dork is thinking further about these matters, and he suggests (a) that Alito's promotion "could have a quite significant negative effect on the independence of the group or creativity of the project," and (b) that pending and future litigants would be troubled by Alito's work in this arena. Though I am not sure I fully understand Chris' points, I suppose they might also apply to Justice Kennedy's recent involvement in the ABA Commission on sentencing reform that bears his name.
In any event, Chris' comments spotlight that a lot of nuance can be brought to this matter. I fear that Judge Alito might, out of an abundance of caution, end his service with the Sentencing Initiative, but I continue to hope he won't. I also hope his work in this arena, and more generally his views about various aspects of federal sentencing, might be explored during his confirmation hearings.
Alito it is ... this should get interesting
All the news outlets are reporting that President Bush is nominate Sam Alito for the Supreme Court this morning, and battlelines are already being drawn (as Gordon Smith notes and Norm Pattis encourages). As I have predicted (here and here), even the early discussion before the official announcement has touched upon criminal justice issues because of Alito's background as a prosecutor.
One issue in the criminal justice debate that will surely get a lot of attention is the death penalty, especially because Alito's most recent major opinion in this area involved the reversal of a grant of habeas due to ineffective assistance in Rompilla v. Horn (available here). That decision was ultimately reversed 5-4 by the Supreme Court in Rompilla v. Beard (available here), with Justice O'Connor serving as the key swing vote.
Of course, I am likely to be most focused on what a Justice Alito will think about the Apprendi-Blakely-Booker line of cases. In this arena, as I have explained in posts here and here and here, defendants and defense attorneys will be hoping that Alito embraces the nickname "Scalito."
- Jumping on the Alito bandwagon
- Serious Justice Alito buzz
- Will the next SCOTUS nominee have any criminal law background?
- Brave New Justice and sentencing issues
- Assailing the lack of criminal justice questions at the Roberts hearing
- More great sentencing reading, especially for SCOTUS watchers
- Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
- Will O'Connor's replacement shift capital jurisprudence?
UPDATE: In an announcement ceremony that already suggests that the White House has a better handle on the latest SCOTUS political realities, President Bush's introduction of Sam Alito emphasized his experience and spotlighted that, as "the top prosecutor in one of the nation's largest federal districts," he "moved aggressively against white-collar and environmental crimes, and drug trafficking, and organized crime, and violation of civil rights." These official talking points also stress experience and credentials (aka he is the anti-Miers). And Judge Alito, in his remarks, followed the "humble script" in accepting the nomination.
My first cut reaction is to echo Orin Kerr's prediction that Alito will be confirmed without a filibuster. For all the headlines, of course, head to How Appealing. And Lyle Denniston has this helpful post over at SCOTUSblog, while Eric Muller are Is That Legal is raising gender concerns.
Gearing up for a manic Monday
I am back in Ohio after a wonderful experience at the terrific conference of the US District Court for the Eastern District of California. The joys of the trip included sharing three meals with uber-blogger Howard Bashman, whose encyclopedic legal knowledge is evident in person as well as on his blog.
Proving there is no rest for the weary, I am already gearing up for a manic Monday. By all reports, we are getting a SCOTUS nominee on Monday. And, based on Tom Goldstein's prognostication in this post, it appears that Monday's order list from SCOTUS could include some serious criminal law action.
Perhaps it is time to crank up the Bangles and page the songwriting geniuses at Begging the Question (especially because it's been far too long since they penned wonderful parodies like 'Twas the Night Before Booker and Desparado and Take a Walk on the Blakely Side). Here's my effort:
Six o'clock already I was just in the middle of a dreamI was nominating Alito by a crystal blue Italian streamBut I can't be late 'cause then I guess pundits won't get paidThese are the days when you wish the pick was already made.It's just another manic Monday (oh-woe)I wish it was Sunday (oh-woe)'Cause that's my Funday (oh-woe)My I don't have to runday (oh)It's just another manic Monday.Should I make another early pick, and have it out again by nine?That seemed so clever before, but it didn't quite work out last time'Cause it takes me so long just to figure out who I'm gonna nameBlame it on the bloggers as I try to beat them at their game.
Jumping on the Alito bandwagon
If you can believe the media and the blogosphere, President Bush on Monday will nominate Sam Alito for the Supreme Court. So suggests this American Spectator post and Erick and others at confirmthem. But because we have had surprises with the last two nominations, who knows what Monday will bring.
Notably, Larry Ribstein at Ideoblog and Dave Hoffman at Concurring Opinions are already giving Alito's business law opinions the once-over. In contrast to the Miers and even the Roberts dynamic, the nomination of Judge Alito (or other long-time judges like Luttig or Brown or Jones) will provide a huge corpus of opinions to examine. (Larry's post indicates his Westlaw search brought up 243 Alito majority opinions, by a Lexis search returned 705 cases when I ran "opinionby (alito)" in the Third Circuit database.)
What particularly excites me about Alito is that, as first discussed here, his nomination should put a spotlight on criminal law issues because his pre-judicial career was as a criminal lawyer — with six years in the US Attorney's Office in New Jersey and six years in the Justice Department. Notably, tonight Mike in this potent post at Crime & Federalism effectively spotlights "Why the Supreme Court Needs a Criminal Lawyer"; I have been harping on this topic (see here and here and here) for quite some time.
Further proof of Alito's criminal justice roots comes from his few academic writings. An on-line search reveals three pieces: Change in Continuity at the Office of Legal Counsel, 15 Cardozo L. Rev. 507 (1993), Reviewing the Sentencing Commission's 1991 Annual Report, 5 Fed. Sent'g Rep. 166 (1992), and Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27 (1986). Obviously, two of these pieces are focused directly on criminal law topics and one — be still my heart — is about sentencing and appears in my beloved Federal Sentencing Reporter.
I wonder what Judge Alito thinks about Blakely and Booker (and Harris and Almendarez-Torres and Neder and Sullivan and ...).
Still more on Libby's plea and sentencing dynamics
Assessments of what's next for Lewis Libby in the CIA leak case following his indictment Friday continue to spotlight the interplay of politics and pleas and sentencing. This New York Times story notes that in the White House "there is speculation about whether Mr. Libby, facing the possibility of significant prison time if convicted, may decide that even his loyalty to the Bush-Cheney team has its limits," and explains that the "speculation posits that Mr. Libby may seek a plea bargain that could win him leniency and perhaps limit or sidestep jail time."
Meanwhile, Ellen Podgor here at White Collar Crime Prof Blog astutely notes that "Libby, a lawyer, has more to lose with a plea if the plea implicates his law license." She also wonders, "will Prosecutor Fitzgerald offer a plea, and will it be a reasonable one? If he does offer a plea will it be dependent upon Libby testifying against others?"
Finally, this Newday column sets forth intriguing guideline ranges in the Libby case, stating that, under "the federal sentencing guidelines, ... [if Libby] goes to trial and loses, 97 to 121 months is a realistic figure, 21 to 27 months if he takes a guilty plea before trial in some kind of point-his-fingers-at-others deal." Notably, experienced former US probation officer Fran Bowman in these comments to a prior post, came up with much different numbers in her Libby calculations. So much for the guidelines creating sentencing certainty.
- More on Lewis Libby's possible plea and sentencing dynamics
- Sentencing dynamics in CIA leak investigation
- Has Patrick Fitzgerald done guideline calculations?
October 30, 2005
Is it Alito, Luttig or ... Brown?
Continuing the buzz that emerged on Friday, there is a lot of talk in the newspapers and the blogosphere about Sam Alito and Michael Luttig as the two front-runners for a SCOTUS nomination. The blogosphere buzz around these two folks is especially interesting over at confirmthem and this post at UTR; Lyle Denniston here at SCOTUSblog suggests we might be getting a nominee within the next 24 hours.
Article 3 Groupie speculates that all the Alito buzz may be a head fake on the way to a Luttig nomination. But I have a different theory: Could all the Alito and Luttig buzz be a misdirection on the way to the nomination of Janice Rogers Brown?
This article reports that President Bush "and First Lady Laura Bush were scheduled to participate in a wreath-laying ceremony this evening honoring late civil rights activist Rosa Parks." Wouldn't it be an incredible moment of political theater and strategy to announce the SCOTUS nomination of Brown at this event? The President could describe Brown as the judicial equivalent of Rosa Parks, and framing the nomination in such terms would, I think, greatly impact the political dynamics and debate surrounding this nomination.
A few related posts:
- Serious Justice Alito buzz
- The SCOTUS name game
- Miers is out, who's next?
- A criminal law perspective on Janice Rogers Brown
- Will the next SCOTUS nominee have any criminal law background?
- Does SCOTUS need a trial judge?
UPDATE: Much to the relief of Ann Althouse and A3G, no SCOTUS nominee announcement on Sunday night. And I am pleasantly surprised that Ann and A3G and many commentors view the honoring of the historic Rosa Parks as an event that should be above politics. Now only if we could get everyone to think that way about the naming of a Supreme Court Justice....
Considering juvenile relevant conduct
Steve Minor of SW Virginia law blog fame was kind enough to send me word of US v. Whittington, No. 5:04CR00025 (W.D. Va Oct. 26, 2005) (available here), a very interesting district court ruling by US District Judge Glen E. Conrad. In Whittington, the "defendant contests the inclusion in the presentence investigation report of conduct which predated his eighteenth birthday for consideration as relevant conduct at sentencing." Here are snippets of Judge Conrad's ruling in Whittington:
[A] defendant who may not be properly chargeable with certain conduct because of his youth at the time the conduct occurred, may nonetheless retain sentencing exposure for that conduct.... Although a court has no power to hold a defendant criminally liable for acts committed prior to his attaining majority, it may hold him accountable for those acts during the sentencing process.... In the case of a conspiracy such as the one at issue, the Sentencing Guidelines make it incumbent upon the court to consider all of the reasonably foreseeable conduct of others in furtherance of the conspiracy when sentencing the defendant.
October 30, 2005 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack