February 5, 2005
Summarizing the USSC 15-year report (and recent posts)
In this post, I urged everyone considering a legislative response to Booker to review the US Sentencing Commission's recently released 15-year report, since charting a future for federal sentencing requires understanding its past. The full USSC report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.
Because the report runs 150 pages, I asked a research assistant to help me spotlight some of the most essential findings of the central chapters of the report. My RA did a great job producing a 19-page document which summarizes key findings and reprints key charts and graphs from Chapters 2-4 of the USSC's 15-year report. Thinking others might benefit from his work, I provide this summary for downloading here:
And while we are in summary mode, given all the major doings over just the last few days, I thought it would be useful to summarize (in a topical way) some of the recent developments and posts. So:
Circuit court Booker developments and commentary
- Booker burdens in the 2d Circuit and elsewhere
- The 10th Circuit speaks on harmless error!
- The 11th Circuit speaks (loudly) on plain error!
- Circuit pacing, process and plans
- An intra-circuit split in the 6th Circuit on plain error!
District court Booker developments and other commentary
- Justifying "variance" to remedy unwarranted disparity caused by the guidelines
- More amazing post-Booker work by Judge Adelman
- Booker debate continues with another potent district opinion
- Report from a great Yale Booker panel
- Another perspective on Justice Ginsburg's switch
State Blakely developments
February 5, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Booker burdens in the 2d Circuit and elsewhere
As the Second Circuit Blog discusses here, the Second Circuit late yesterday issued a "Special Order of Inquiry to Appellants Regarding Remand Pursuant to US v. Crosby." Crosby was the Second Circuit's major ruling last week, discussed here and here, which outlines the court's general understanding of sentencing and re-sentencing after Booker. (Relatedly, the Second Circuit Blog here details the importance of the Second Circuit's Fleming case decided along with Crosby.)
This Special Order from the Second Circuit, which can be accessed here, explains that Crosby sets forth the post-Booker "remand for reconsideration" procedures to be applied to all cases held since Blakely came down in June, and then asks attorneys in these cases to complete a form indicating whether a defendant seeks a remand for sentence reconsideration. [UPDATE: An insightful reader clarifies that the list is just those cases that had been decided and held by the Second Circuit since Blakely.]
Though not substantively a new development, it is fascinating to see the list of more than 200 cases in the Order's Appendix. Considering that, according to these USSC stats, the Second Circuit had only 177 appeals in FY 2002, it appears (not surprisingly) that Blakely significantly increased the number of appeals and thus increased the caseload in the appellate pipeline.
The extra workload created by Blakely and Booker will surely be burdensome for courts in the Second Circuit. But consider the extra work which must now be facing the Sixth, Eighth and Eleventh Circuits, each of which had roughly three times more appeals than the Second Circuit in FY 2002, or the extra work for the Fourth, Fifth and Ninth Circuits, each of which had roughly six times more appeals than the Second Circuit in FY 2002.
Justifying "variance" to remedy unwarranted disparity caused by the guidelines
The recent decision by Judge Adelman in Galvez-Barrios (details here) is an important reminder that federal judges must now consider varying from the (advisory) guidelines in order to remedy unwarranted disparities that can result from following the guidelines. In other words, judges must recall that, in some situations, following the guidelines may itself produce disparities, and lawyers should spotlight situations in which sentencing uniformity may be better achieved in a particular case by not following the guidelines.
In Galvez-Barrios, Judge Adelman focused on the regional disparities that the guidelines create in immigration cases because some districts (and only some districts) have "fast-track" programs which give huge sentencing discounts to some defendants to foster rapid pleas. (Read the full Galvez-Barrios here for all the details.) Similarly, last week in US v. Revock, 2005 U.S. Dist. LEXIS 1151 (D. Me. Jan. 28, 2005), Judge Hornby concluded he should not follow the guidelines in order to avoid unwarranted co-defendant disparity: Revock's co-defendant did not receive an enhancement because he was sentenced after Blakely but before Booker and Revock was identically situated to his co-defendant.
As both Judge Adelman and Judge Hornby stressed, a distinct provision of 3553(a) commands a focus on these disparity issues: 3553(a)(6) instructs judges to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Thus, in addition to being concerned with the traditional purposes of punishment specified in 3553(a)(2), sentencing judges now have to make individualized judgments about avoiding disparities which may, in some settings, actually require varying from the federal sentencing guidelines.
Tennessee "Blakely fix" news
This effective article details that the task force created in Tennessee to assess and repond to Blakely (background here and here) will present a proposal to give judges, not juries, more sentencing authority under Tennessee law:
The panel rejected a solution favored by the state's District Public Defenders Conference that would have created a system where juries decide factors that could be used to increase a defendant's sentence.
Instead, the group favored a plan that would give judges greater freedom to decide what punishment a defendant deserves. That plan is popular among prosecutors and judges.
The newspaper article provides terrific background on the current state and recent history of Tennessee's sentencing laws. It also notes the internal controversy over the task force's ultimate proposal:
[I]t was not a decision that sat well with all members of the task force, made up of lawyers, professors, prosecutors, judges and state officials. Professor Donald Hall made it clear he preferred to let juries rule on enhancement factors, as did a few others on the panel. There were other concerns voiced by task force members. The proposal still requires judges to decide various sentencing factors.
Big Blakely/Booker case from Ohio
I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here). To its great credit, as detailed in memos linked here, Ohio Criminal Sentencing Commission has been tracking Blakely developments closely, and this memo from last month provides a great overview of the Blakely caselaw in Ohio before Booker hit the scene. As the memo notes (and as previously reported here), most of Ohio's intermediate appellate courts have found, on various grounds, that Blakely is largely inapplicable in Ohio.
But, in a major development that is well covered in this newspaper article, a decision yesterday from the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concludes that Booker significantly changes the Blakely analysis in Ohio. Here's the court's explanation:
After the Blakely decision, this court and the Ohio Sentencing Commission speculated that Apprendi and Blakely did not materially affect the Ohio sentencing scheme. Unlike the sentencing guidelines in the state of Washington and the federal criminal system, Ohio's scheme does not permit a sentencing court to deviate from a prescribed range of sentences for any felony. Thus, the term "statutory maximum" was believed to be synonymous with "statutory range," or the range of years of imprisonment set by the General Assembly for each felony punishment. Since a sentencing court cannot exceed "the statutory range authorized by law," the consensus then was that the Sixth Amendment was not implicated by Ohio’s sentencing statutes.
The statutory range for a first-degree felony is three to ten years. Under our previous reasoning, the sentencing court would have discretion to impose the longest sentence within that range as long as it made the factual finding that the defendant was an offender who had committed the "worst form" of the offense or posed the greatest likelihood of recidivism. The sentencing statutes "vest the exclusive responsibility to make th[is] determination in the court and not in a jury." Unlike the additional findings made by the sentencing courts in Apprendi or Blakely, we reasoned, the finding that a defendant had committed the worst form of the offense did not increase the sentence beyond the statutory range.
In light of the recent decision of the United States Supreme Court in United States v. Booker, it is clear that this interpretation was wrong. In Booker, the Court reexamined its analysis in Apprendi and its progeny and held that "we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." The prescribed statutory maximum sentence is not "the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."
The holding, as reaffirmed in Booker, applies to "all cases on direct review or not yet final." Accordingly, the Blakely definition of "prescribed maximum sentence" applies to this case. Here, the trial court imposed a sentence upon Bruce that was within the statutory range authorized by the Ohio General Assembly for first-degree felonies. But the maximum sentence the trial court could impose without additional facts proved to a jury or admitted to by Bruce was nine years, not ten. The additional fact necessary to impose the tenth year of imprisonment -- that Bruce was among those offenders "who [had] committed the worst forms of the offense" -- was found by the trial court at the sentencing hearing, after Bruce's plea had been accepted. Therefore, the Sixth Amendment prohibited the imposition of the longest term of imprisonment. R.C. 2929.14(A)(1) and 2929.14(C) are unconstitutional to the extent that they permit a sentencing court to impose a sentence exceeding the maximum term authorized by the facts admitted by the defendant or proved to a jury beyond a reasonable doubt.
Another perspective on Justice Ginsburg's switch
I have done some prior commentary here and here about Justice Ginsburg decision to "switch teams" on the right and remedy questions in Booker. And I was especially pleased to receive some new insights on this issue from an e-mail sent to me by Professor Ronald Levin. Here is the text he has allowed me to share:
You will recall that the Justices disagreed as to whether the remedial reasoning employed by Justice Breyer could properly be called severability analysis at all. What he actually did was to use remedial authority to remake a statutory scheme in order to bring about the result that Congress supposedly would have wanted if it had foreseen a constitutional problem with its handiwork. But he didn't actually "sever" some provision as unconstitutional. I have to agree with Justice Stevens that this device has not usually been called severance in the past. Whatever you want to call it, however, the technique has significant case law support. There is also a law review literature.
In fact, I can easily point you to the single most comprehensive and incisive law review article ever written on the subject. It is called "Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation," and it was published at 28 Clev. St. L. Rev. 301 (1979). The author of the article was a Columbia Law School professor who based her analysis on her experience in litigating sex discrimination cases in the Supreme Court. In these cases, after showing that a given statute was tainted with sex discrimination -- or, to use the term she introduced, gender discrimination -- she had to address the question of whether the statute in question should be extended to include both men and women, or should instead be nullified so that it would apply to neither. Although her position as an advocate had been to support extension in the cases she had handled, she made clear that the answer in a particular case should be pragmatically determined and situation-specific. But her bottom line was clear: "The courts act legitimately, I am convinced, when they employ common sense and sound judgment to preserve a law by moderate extension where tearing it down would be far more destructive of the legislature's will." (p. 324)
Not long after writing the article, this professor became a judge on the D.C. Circuit. And, as a judge, she sometimes went out of her way to rely on this same line of cases -- even where her panel found that a particular statute that was under challenge wasn't unconstitutional in the first place (and where, therefore, she did not actually need to discuss what remedial consequences would have ensued if she had found a violation after all). Well, she's no longer on the D.C. Circuit, but I'm sure you've long since figured out what I'm driving at here. In much the same way that Justice Breyer's inclination to preserve the vitality of the Guidelines in some fashion is unsurprising, once you know his professional history, Justice Ginsburg's inclination to support remedial creativity in Booker is unsurprising, once you know hers.
For details, see my article 'Vacation' at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 331-33 (2003).
Report from a great Yale Booker panel
With the rush of happenings in the last few days, I did not get a chance to note that Yale Law School had put together, as detailed here, an amazing panel to discuss Booker. Fortunately, YLS student Will Baude was in attendance, and he provides an extended account of the event in this post. In addition to learning that this blog got a plug, I was amused and intrigued by the report on Deputy Solicitor General Michael Dreeben's discussion of the Booker "paradox" and this report by Will:
[Dreeben] suggested that we were likely headed to rule by 500 different philosopher-kings, but "I'm speaking provocatively because I admire philosopher-kings."
I cannot help but wonder if this final statement from Dreeben was influenced by the fact that he was sharing a panel with US District Judge Nancy Gertner (although I suppose the right term would then be "philosopher-queen"). Speaking of Judge Gertner, her comments as reported by Will were also interesting, and it reminded me that we are still awaiting her "official" take on Booker. (Recall that Judge Gertner's opinion in US v. Mueffelman, 327 F. Supp. 2d. 79 (D. Mass. 2004), came closest to "predicting" Booker and helped earn her a spot in my mythical Sentencing Judges Hall of Fame.)
Will's entire account of the Yale event is a great read, and he also reports on comments by Professor (and FSR Founding Editor) Dan Freed and by David Fein, a former federal prosecutor and now white-collar defense lawyer. I would be eager for any other attendees to add more details in the comments.
February 4, 2005
The 10th Circuit speaks on harmless error!
With thanks to Howard Bashman of How Appealing for sending along the case, late tonight the 10th Circuit posted its first Booker ruling, US v. Labastida-Segura, No. 04-1311 (10th CIr. Feb. 4, 2005) (available here). Marking a sharp contrast from the 11th Circuit's plain error work in Rodriguez (which I am still thinking through), the 10th Circuit in Labastida-Segura is seeing the world through a more defense-oriented view:
We must apply the remedial holding of Booker to Mr. Labastida-Segura's direct appeal even though his sentence does not involve a Sixth Amendment violation. The [Supreme] Court has indicated that harmless error may be considered in such cases (thereby obviating the need for resentencing). Fed. R. Crim. P. 52(a) provides that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." In the context of a misapplication of the guidelines under 18 U.S.C. § 3742(f)(1), the Supreme Court held that "once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed." Williams v. United States, 503 U.S. 193, 203 (1992) (citing Fed. R. Crim. P. 52(a)); see also 28 U.S.C. § 2111.
The district court plainly sentenced Mr. Labastida-Segura under the Sentencing Guidelines viewing them as mandatory. Although the Supreme Court indicated that not every guideline sentence contains Sixth Amendment error, and not every appeal requires resentencing, Booker, 2005 WL 50108, at *29, in this case (where the error was properly preserved) we cannot conclude that the error is harmless. See United States v. Urbanek, 930 F.2d 1512, 1515-16 (10th Cir. 1991) (where court did not say whether the sentence would be the same with or without improper adjustment, remand was required). Here, where it was already at the bottom of the guidelines range, to say that the district court would have imposed the same sentence given the new legal landscape (even after consulting the Sentencing Guidelines in an advisory capacity) places us in the zone of speculation and conjecture: we simply do not know what the district court would have done after hearing from the parties. Though an appellate court may judge whether a district court exercised its discretion (and whether it abused that discretion), it cannot exercise the district court's discretion. See Martinez v. Potter, 347 F.3d 1208, 1211-12 (10th Cir. 2003).
The 11th Circuit speaks (loudly) on plain error!
As a reward to everyone who stays late on a Friday, we get a big development at the end of a relatively quiet day. The Eleventh Circuit has concluded in US v. Rodriguez, No. 04-12676 (11th Cir. Feb. 4, 2005) (available here), that the defendant did not make out a claim for plain error based on Booker. And, unlike the unrealized intra-circuit division in the Sixth Circuit noted here, this time we get to see the circuit conflict clear as day:
We are aware that three other federal courts of appeals have reached results different from our own in regard to whether Booker error is plain error. We have carefully read their opinions and are unpersuaded by them.
The Eleventh Circuit then takes 12 pages to explain, often with quite bold language, why Hughes from the Fourth Circuit and Oliver from the Sixth Circuit and Crosby from the Second Circuit are all washed up on this issue. Amazing stuff.
I hope this weekend to comment on plain error and a host of other lurking post-Booker questions that may before long produce circuit splits. I will close today by just wondering out loud if this issue is "big" enough to prompt cert. Thoughts from readers?
Circuit pacing, process and plans
Among the interesting stories to track in the post-Booker world is the pace and process through which the different federal circuit courts are considering and addressing the many legal questions issues that Booker has raised. Taking stock on a Friday afternoon, I count on-line roughly 30 circuit rulings which discuss Booker in some way, although a handful involve circuit courts just noting that the defendant has not raised a Booker claim.
Interestingly, three circuits (the First, Fifth and DC) have been completely silent to date, and three other circuits (the Third, Ninth and Tenth) have been "officially" Booker mute as these circuit have only issued a few unpublished decisions that briefly mention or address Booker. The other half of the circuits have been more vocal, with the Eighth Circuit setting the pace with six published and one unpublished decision, followed by the Second and Eleventh Circuits which each have produced four published cases mentioning Booker is some way. The Sixth Circuit, as detailed here, found a way to create a conflict between its two published dispositions, though it also has two unpublished Booker rulings. And the Fourth and Seventh Circuits both have one major ruling (the Fourth on plain error in Hughes; the Seventh on retroactivity in McReynolds) to go with a few minor cases that mention Booker.
Also of interest, we can see from this notice that the Eighth Circuit has plans to address the issue of plain error through an en banc argument scheduled for March 9. And those in the know tell me that this notice shows that the Tenth Circuit likewise has made en banc Booker plans through arguments scheduled for March 7. In addition, as noted here, the Second Circuit clearly worked hard to speak with a coordinated vote through its Crosby decision, and I suspect some other circuits (though obviously not the Sixth on plain error) may be doing the same.
Of course, the disparate pacing, process and plans for Booker consideration will not be as worrisome as disparate results.
Inside the Beltway Booker news and plans
Though I expect court action will continue apace nationwide, it is now official that the fine folks in DC will be joining in the Booker festivities. As noted here, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled for February 10 an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."
I have heard rumors about who will be testifying, though I am not sure when the list of witnesses will be finalized and made public. Especially now that Alberto Gonzales has been confirmed as AG, I will be especially interested to see if the Justice Department uses this House hearing to declare its views on the post-Booker world and whether DOJ believes legislative action is needed. In this regard, I was encouraged to see that, in this Washington Post article about the Gonzales confirmation, former DOJ official Douglas Kmiec says Gonzales believes "decisions are best resolved in study and deliberation, not press release."
Meanwhile, in an important related development, a recent BNA article entitled "Sen. Specter Willing to Wait Before Addressing Federal Sentencing Guidelines" (which I do not think is available on-line) quotes the chair of the Senate Judiciary Committee as saying that a response to Booker "will have to take its turn" on the committee's agenda. Here's a selection from the article:
While reiterating his intention to address the guidelines at some point in this congressional session, Specter told BNA, "It will have to come after [Attorney General nominee Alberto] Gonzales, class actions, bankruptcy, asbestos and judges."
Specter indicated that, for now, he was content to let lower courts apply and interpret the Supreme Court's Jan. 12 ruling in United States v. Booker, which held that the guidelines violated the constitution by requiring judges to increase sentences on the basis of facts not heard or decided by a jury. "Let's see what the courts are going to do," said Specter. "The courts have a lot of leeway -- we'll take a little time and let it percolate for a while and get some experience."
This quote is very encouraging. It echoes the "go slow" advice to Congress set out in this post and recently coming from the ABA, leads me to think we may not see Senate Hearings on Booker this month, and makes me even more confident that a congressional response will be deliberative and allow for broad examination of post-Booker law and practice by the US Sentencing Commission and others. (Recall that the USSC has its own hearings planned for February 15 and 16, although an official notice does not yet appear on the USSC website.)
More amazing post-Booker work by Judge Adelman
While in Milwaukee (which I am calling Booker ground zero), I received a copy of Judge Lynn Adelman's latest sentencing opinion in which he applies his Ranum methodology in an immigration case. (Background on Ranum can be found here, commentary here and here.) Judge Adelman's work in US v. Galvez-Barrios, No. 04-CR-14 (D. Wisc. Feb. 2, 2005), which can be downloaded below, is another absolute must-read on this Friday morning.
Galvez-Barrios breaks new post-Booker ground through its thoughtful discussion of immigration sentencing and "fast-track" realities. It is also, in my view, an example of post-Booker judging at its finest (though I must admit my view may be influenced by the fact that Galvez-Barrios cites six different articles from my Federal Sentencing Reporter).
Like Judge Kopf's Wanning opinion (discussed here), Judge Adelman's work in Galvez-Barrios must be read in full to be fully appreciated. But here is a sample:
As Booker directs, in determining defendant's sentence I gave serious consideration to the advisory guidelines. In the present case, I determined that: (1) the manner in which the guidelines calculated defendant's offense level was flawed; and (2) nevertheless, with modifications to account for the flaws, the guidelines helped translate my findings under 3553(a) into a numerical sentence....
In imposing sentence in the present case, I was also troubled by the unwarranted sentencing disparity under the guidelines for [immigration] offenders. The disparity occurs because certain judicial districts utilize so-called "fast-track programs" in [these] cases. Through charge bargaining or stipulated departures, these programs allow [an immigration] offender who agrees to a quick guilty plea and uncontested removal to receive a reduced sentence....
Although fast-track programs may be useful in helping busy border districts process more defendants, they nevertheless create serious sentencing disparities.... As one judge put it, "it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested." Therefore, under Booker and 3553(a)(6). it may be appropriate in some cases for courts to exercise their discretion to minimize the sentencing disparity that fast-track programs create."
Booker debate continues with another potent district opinion
The circuit courts had started to take over the Booker judicial headlines with all the major rulings Wednesday (discussed here) and the remarkable intra-circuit split developing in the Sixth Circuit over plain error (discussed here). But the potent work of US District Judge Richard Kopf in US v. Wanning, No. 4:03CR3001-1 (D. Neb. Feb. 3, 2005), is a reminder that there are still many district courts with much to contribute about Booker.
In Wanning, which can be downloaded below, Judge Kopf weighs in on the growing debate over how to weigh and integrate the guidelines into post-Booker sentencing decision-making. Reiterating the legal perspective of Judge Cassell's Wilson opinions and expressing concerns about judges relying on personal views in an echo of Judge Holmes' Barkley opinion, Judge Kopf delivers a very sharp (and often very comical) defense of why he will give the guidelines "substantial weight even though the are now advisory."
Judge Kopf's work in Wanning must be read in full to be fully appreciated, but here are judge a few choice quotes from the opinion:
Judge Cassell thought Booker meant that the Guidelines, and the ranges they produce, should be given "considerable weight." Wilson, 2005 WL 78552, at *3. Judge Pratt, on the other hand, believes that Judge Cassell is incorrect. Judge Pratt (and others who agree with him) would apply relevant portions of the sentencing statutes in a given case, without giving the Guideline ranges any particular weight, in order to arrive at a just sentence. Myers, 2005 WL 165314, at *2-3.
In my opinion, Judge Cassell's position — that the Guideline range provides the presumptively reasonable sentence — is correct....
The Guidelines and their ranges were explicitly crafted by the Sentencing Commission at the direction of Congress to implement the statutory purposes of sentencing.... Congress also retained the power to amend the sentencing statutes and control the Sentencing Commission if it thought there was a mismatch between the purposes of sentencing and the Guidelines....
[J]udges cannot reasonably conclude that Congress willfully or negligently allowed Guideline ranges to be implemented that contradicted the statutes that Congress enacted for the purpose of setting sentencing goals. It is more logical, and far more consistent with the proper role of an unelected judge, to presume that those ranges are most often consistent with, and do not contradict, the statutory sentencing goals and factors....
If one reads the decisions of judges who give the Guidelines and their ranges no particular significance ("weight"), one is, sadly, left with the conclusion that well-meaning sentences are now being imposed with little or no coherent organizing principles. One day it may be deterrence (general or specific). Another day it might be "just punishment" that catches our fancy. On the third day we may be seen as promoting "respect for the law." Of course, we never want a sentence longer than necessary. And so on, and so on. We end up selecting the sentencing goal(s) of the day (and thus the sentence of the moment) with much the same whimsy and lack of coherence as children picking the flavor of the day at the ice cream shop.
What is really going on here is that we judges think that Congress and the Commission are frequently too harsh. Goodness knows, I believe that. But, no matter how loudly we proclaim that it is not so, the impact of following the "mix-and-match" approach is to return federal sentencing practices to the period before the Guidelines when old white men like me could and did sentence anywhere they wanted so long as they uttered some legal mumbo jumbo.
February 3, 2005
Back home from Booker ground zero
I am back in Ohio after a great day in Milwaukee — from the land of Laverne & Shirley back to the land of Family Ties — and I have returned to a full in-box with cases and other items that I will share in coming posts. But first I must just note how exciting it was to spend the day at Booker "ground zero": not only did the Booker case come from Wisconsin, but I learned today that all the lawyers involved on both sides of the case in the Supreme Court have Wisconsin ties.
And, of course, Judge Adelman of Ranum fame hails from Wisconsin, as does Representative F. James Sensenbrenner, Chairman of the House Committee on the Judiciary. As noted here, this Committee's Subcommittee on Crime, Terrorism, and Homeland Security has officially scheduled for next week an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."
An intra-circuit split in the 6th Circuit on plain error!
I am in Milwaukee and being treated with wonderful hospitality despite the having called my locale the land of Laverne & Shirley last night in this post. Part of that hospitality has included a chance to see a new great opinion in a case called Galvez-Barrios from Milwaukee's own Judge Adelman (of Ranum fame, basics here), which I hope to be able to post later today.
But first, there is what seems to be an amazing development from the Sixth Circuit: an intra-circuit split on the analysis of plain error. Recall that a panel of the Sixth Circuit yesterday in Oliver (discussed here) issued a bold plain error ruling which distinguished the Supreme Court's Cotton decision and suggested that the court would have to remand for resentencing in pre-Booker cases involving unlawful judicial fact-finding "even if we conclude that the evidence is 'overwhelming and essentially uncontroverted'."
But now I see that a distinct panel of the Sixth Circuit has ruled today in US v. Bruce, 03-3110 (6th Cir. Feb. 3, 2005) (available here) that there was no plain error in pre-Booker case by relying on Cotton and coming to the conclusion that "the evidentiary support for the district court’s findings on these [guideline enhancing facts are] sufficiently 'overwhelming' to defeat any claim that these findings 'seriously affected the fairness, integrity, or public reputation of judicial proceedings.'"
The Bruce ruling goes on to note other reasons why it is not finding plain error, but I am not sure those reasons are sufficient to keep Oliver and Bruce from being in conflict. (Notably, Bruce cited neither Oliver or the Fourth Circuit's ruling in Hughes which takes a similar approach to Oliver.)
In short, everyone repeat after me: "Time to go en banc."
Schlemiel, schlimazel, hasenpfeffer incorporated!
I am off to the land of Laverne & Shirley today to talk to a group of public defenders, and thus blogging might be light most of the day. Fortunately, the courts and others gave us plenty of reading on Wednesday to keep us all busy. I have collected the links to the most recent court rulings here, and below I have assembled notable recent commentaries (which run oldest to the most recent since this last collection):
- Is there a "new right" on criminal sentencing issues?
- Thinking about what DOJ is thinking about
- Requiring proof beyond a reasonable doubt in any legislative fix
- Multi-branch Booker rumors and suggestions
- Ashcroft's curious parting shot about Booker
- DOJ's post-Booker memo to line prosecutors
- Hearing the sweet sounds of Booker
- Thoughts on regulating prosecutorial discretion
- Electric Circuits and Second (Circuit) thoughts
So this is what a common law of sentencing looks like
In this post the day after Booker, I suggested that Justice Breyer's remedy ultimately sets up a remarkable experiment in advisory guideline sentencing and creates the possibility of developing a (long-desired) purpose-driven "common law of sentencing." In just three weeks time, I have been amazed by the dynamic nature of this common law process.
Judge Cassell's latest Wilson opinion (basics here) is just the latest example of the amazing public judicial dialogue that Booker has engendered. In a thorough opinion, Judge Cassell in Wilson II effectively explains why he considers his post-Booker sentencing approach sounder than Judge Adelman's approach in Ranum (basics here), and along the way Judge Cassell usefully develops a new nomenclature ("variance") and makes important observations about the consideration of offender circumstances within the guidelines. (And yet I think Judge Adelman and others could retort that Judge Cassell's heavy deference to the Commission's guidelines does not fully jibe with the language and structure of 3553(a) and various parts of Booker, and that his approach is not sufficiently attentive to the reality that system-wide actors are not institutionally well positioned to effectively address offender circumstances and other inherently case-specific matters.)
Wherever one comes down on the merits, the judicial fireworks have been amazing to watch. Consider that, in addition to all the opinions assembled here from the last two weeks, this week has already now also brought us:
- The 8th Circuit's opinions in Fox here and Yahnke here
- Judge Batallion's ruling in Huerta-Rodriguez here
- The 6th Circuit's opinion in Oliver here
- The 7th Circuit's opinion McReynolds here
- The 2d Circuit's opinions in Crosby and Fleming here
Electric Circuits and Second (Circuit) thoughts
I figured it would not take long before the Circuits started cranking out major Booker opinions, and Wednesday we got important rulings from three Circuits: the Second Circuit addressing a host of topics in Crosby and Fleming (basics here), the Sixth Circuit addressing plain error in Oliver (basics here), and the Seventh Circuit addressing retroactivity in McReynolds (basics here). And rumor has it that we may be seeing a lot more circuit action in the coming days.
Though all of these recent cases are quite important, the broad and thoughtful work of Judge Newman for the Second Circuit in Crosby and Fleming merits the most attention. (And, suitably, these decisions have already gotten some attention from the Second Circuit Blog here.) Because Crosby in particular covers so much ground, my commentary here can only spotlight a few of the most noteworthy aspects of its work by the Second Circuit.
1. Quasi en banc decision-making. The Crosby decision comes from a panel, but Judge Newman notes not only that the opinion was "circulated to all the judges" of the Court before filing, but also that "the members of this panel have greatly benefitted from numerous suggestions and comments by other judges of this Court." Especially in the wake of all the en banc craziness that took place in the 6th and 8th Circuits following Blakely, this approach to collective decision-making is fascinating and seemingly commendable. It also leads me to wonder whether other Circuits are getting the whole team involved in Booker rulings.
2. Showing enormous respect for district courts. Judge Newman served on the district court for many years before being elevated to the Second Circuit, and his respect for the workload and work product of district courts comes through in many ways in Crosby and Fleming. Though Crosby does directly mandate certain post-Booker actions by district courts, both decisions clearly seek to give district courts lots of post-Booker breathing room: e.g., Crosby says that precise calculation of the guideline range won't always be necessary; Crosby stresses the "day-to-day role of district judges in imposing sentences and the episodic role of appellate judges in reviewing sentences;" Crosby provides for remands for reconsideration rather than for resentencing, which would seem to ease the burdens on district courts in some cases; Fleming says that, in review for reasonableness, the "appellate function ... should exhibit restraint, not micromanagement."
3. Enforcing a sentencing process. In Fleming, the Second Circuit suggests that its reasonableness review of the length of sentences will be quite deferential: "Although the brevity or length of a sentence can exceed the bounds of 'reasonableness,' we anticipate encountering such circumstances infrequently." But in Crosby, the Second Circuit stresses that district courts generally will still have to calculate an applicable guidelines range, consider traditional departure considerations, and state reasons in open court and write up with specificity justifications for a sentence outside the calculated range. Though the Second Circuit says it will not be requiring "robotic incantations," district courts should realize that a failure to follow the new Booker operating procedures could alone lead to a finding of unreasonableness.
4. Leaving many questions answered. I count at least 5 notable legal issues spotted but not resolved in the Crosby footnotes, and the main text states that the Court with its remand is expressing "no views on the considerations that might inform an appellate decision as to the reasonableness of the length of a sentence." Moreover, though the opinion seems to state that district judges would be committing procedural error if they decided to fully Blakely-ize the guidelines and treat them as mandatory — the approach suggested recently by Judge Holmes in Barkley (basics here, commentary here) and perhaps endorsed by Judge Batallion in Huerta-Rodriguez (basics here) — the opinion does not address whether a district judge could choose to apply a proof standard of beyond a reasonable doubt (or clear and convincing) when finding facts to calculate guideline ranges.
February 2, 2005
A capital sentencing moment in the State of the Union
Unsurprisingly, and as I predicted here, President Bush did not discuss Booker directly in his State of the Union address tonight. The speech did have, however, this line which might have been an indirect reference to sentencing reform issues: "Because one of the main sources of our national unity is our belief in equal justice, we need to make sure Americans of all races and backgrounds have confidence in the system that provides justice."
Two subsequent sentences spoke more directly to issues of criminal justice concern. And, somewhat surprisingly (at least to me), theses sentences included a commitment to fund special training for defense counsel in death penalty cases:
In America we must make doubly sure no person is held to account for a crime he or she did not commit — so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction. Soon I will send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side.
Judge Cassell responds with Wilson II!!
In an encore performance, Judge Paul Cassell, who got the post-Booker world kicked off with a bang with his Wilson decision (basics here, commentary here and here), has jumped back into the on-going sentencing dialogue with another (lengthy) Wilson opinion (which was prompted by the defendant's motion for reconsideration). AMazingly, Judge Cassell seems to be able to move even faster than this blog.
In this version of US v. Wilson, Case No. 2:03-CR-00882 PGC (D. Utah Feb. 2, 2005) (available here), Judge Cassell reaffirms his earlier view that the Guidelines should receive "heavy weight" in determining sentences. The opinion directly responds to rulings in Ranum (basics here, commentary here and here), Myers (discussed here), West (discussed here), and Huerta-Rodriguez (discussed here). Amazingly, it also contains a few concepts and quotes from the Second Circuit's decision today in Crosby (discussed here).