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).
Thoughts on regulating prosecutorial discretion
One of the many amazing lines in Judge Batallion's amazing Huerta-Rodriguez opinion (basics here) was the statement that "[i]n this court's experience, the Department of Justice does not always 'charge and pursue the most readily provable' (beyond a reasonable doubt) crime, especially in drug prosecutions, with the result of introducing more disparity in the system." This assertion is especially interesting against the backdrop of the recent Comey memo (available here) which seeks to reiterate the prosecutorial obligation to pursue the most serious readily provable offense. It also brings to mind the finding of the US Sentencing Commission in its 15-year report that "significant evidence" suggests that "presentencing stages, such as charging and plea negotiation, ... introduce disparity in sentencing." (The full USSC 15-year report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)
Of course, those of us in the ivory tower have long spotlighted that the inevitability and non-transparency of the exercise of prosecutorial discretion may be the Achilles Heel of efforts to control sentencing disparities. Helpfully, today I can report on two thoughtful efforts from the ivory tower to highlight possible ways to regulate the exercise of prosecutorial discretion.
First, my casebook co-author Ron Wright has posted a draft article on SSRN (which is to be published in the Columbia Law Review and flows from this recent conference) entitled "Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation." The article's abstract and a download link is available here. As the abstract explains, Ron's article examines "potential efforts by sentencing commissions to influence the work of prosecutors, especially the charges they select and the plea bargains they enter."
Second, frequent FSR and blog contributor Mark Osler has written a piece for an upcoming symposium at Valparaiso Law School entitled "This Changes Everything: A Call For A Directive, Goal-Oriented Principle to Guide the Exercise of Discretion by Federal Prosecutors." As Mark explains, the piece "recognizes the problem over-broad prosecutorial discretion in the federal system and proposes a solution: That the Attorney General direct federal prosecutors to make discretionary choices from a single guiding principle." Specifically, Mark's article, which can be downloaded below, suggests "that all discretionary choices be made with the conscious goal of reducing crime by focusing on the 'key men' amongst defendants, defining the key man as either a member of a crime network with special skills or a recidivist who poses a future danger."
Today's Booker blogsphere buzz
The blogsphere is buzzing with all sorts of interesting Booker talk, which is not surprising since today is now, by my declaration, the best post-Booker day ever. (Faithful readers will recall from this post that I am a big fan of Richard Scarry and all of his best ever books.) Here is what I have seen on various topics:
- Concerning the Comey memo setting out DOJ's post-Booker policies (detailed here), Ellen Podgor at White Collar Crime Prof Blog has this insightful post with pointed comments about the attached "Booker Sentencing Report Form." In addition, David Porter at the Ninth Circuit Blog provides his take on the memo here.
- Concerning the due process/ex post facto issues surrounding a post-Booker sentence increase based on pre-Booker conduct (an issue previously covered in posts here and here), the Ninth Circuit Blog has posted here an insightful portion of a brief discussing these important matters.
- Concerning some of the work of the circuit courts today, the blog Appellate Law & Practice has this post on Crosby (basics here) from the Second Circuit and this post on Oliver (basics here) from the Sixth Circuit.
The 2d Circuit speaks on Booker!
When it rains it pours: the Second Circuit has jumped into the Booker fray today with decisions in US v. Crosby, 03-1675 (2d Cir. Feb. 2, 2005) (available here), and US v. Fleming, 04-1817 (2d Cir. Feb. 2, 2005) (available here). It seems Crosby is the really big decision (though Fleming involved an affirmance), and together they provide 53 more pages of circuit court wisdom on Booker.
Seeing that both were written by my former boss Judge Jon O. Newman, and that they aspire to cover a lot of ground post Booker ground, I think it is time to declare today the biggest post-Booker day to date. To whet your appetite as you check the toner on your printers, here's the set up of Crosby:
[W]e believe that in the aftermath of a momentous decision like Booker/Fanfan, which will affect a large number of cases confronting the district judges of this Circuit almost daily, it is appropriate for us to explain the larger framework within which we decide this appeal.
And here is Crosby's very useful summary of the state of federal sentencing (at least in the Second Circuit) after Booker:
[W]e can identify several essential aspects of Booker/Fanfan that concern the selection of sentences. First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (I) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.
These principles change the Guidelines from being mandatory to being advisory, but it is important to bear in mind that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum. On the contrary, the Supreme Court expects sentencing judges faithfully to discharge their statutory obligation to "consider" the Guidelines and all of the other factors listed in section 3553(a). We have every confidence that the judges of this Circuit will do so, and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice. In short, there need be no "fear of judging."
Hearing the sweet sounds of Booker
Right after Booker was handed down, I joked in this post that Justice Ginsburg must have been listening to The Who in chambers because the lyrics to Won't Get Fooled Again captured the essence of the Booker decision. Picking up the musical theme, Marc Fernich and Debra Karlstein ask at the outset of their review of Booker developments whether Booker is "David Byrne's 'same as it ever was'? Or Bob Dylan's 'revolution in the air'?"
The (iPod-inspired) article by Fernich and Karlstein is formally entitled "United States v. Booker: Miracle or Mirage?" and it is available for download below. The article provides not only an overview of Booker basics, but also an amazingly up-to-the minute review of all the post-Booker federal court rulings. (Even today's 7th Circuit's decision on retroactivity is included.) As the authors explain, the article "explores some of Booker's conflicting legal implications and offers tips for effectively negotiating them."
UPDATE: Marc Fernich and Debra Karlstein have delivered an updated version of their piece incorporating some of the latest cases through Feb. 3. Here it is:
The 7th Circuit speaks on retroactivity!!
With thanks to readers, I now have news that the Seventh Circuit has spoken directly to the issue of Booker's retroactivity in McReynolds v. US, 04-2520 (7th Cir. Feb. 2, 2005) (available here), and many prisoners are not going to like the news. In an opinion authored by Judge Easterbrook, the Seventh Circuit says Booker is not to be applied retroactively to cases which became final (meaning all direct appeals were concluded) before January 12, 2005. Here's some of the key language:
Although the Supreme Court did not address the retroactivity question in Booker, its decision in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), is all but conclusive on the point. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002) — which, like Booker, applied Apprendi's principles to a particular subject — is not retroactive on collateral review....
We held in Curtis v. United States, 294 F.3d 841, 843 (7th Cir. 2002), that Apprendi does not apply retroactively on collateral review, because it "is concerned with the identity of the decisionmaker, and the quantum of evidence required for a sentence, rather than with what primary conduct is unlawful". That, too, is equally true of Booker. No conduct that was forbidden before Booker is permitted today; no maximum available sentence has been reduced....
The remedial portion of Booker drives the point home.... District judges must continue to follow their approach as guidelines, with appellate review to determine whether that task has been carried out reasonably. No primary conduct has been made lawful, and none of the many factors that affect sentences under the Sentencing Guidelines has been declared invalid....
What is more, Booker does not in the end move any decision from judge to jury, or change the burden of persuasion. The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application. As a practical matter, then, petitioners' sentences would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system. That is not a "watershed" change that fundamentally improves the accuracy of the criminal process.
We conclude, then, that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S. Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system.
DOJ's post-Booker memo to line prosecutors
I noted in this post yesterday that I had heard that Main Justice had sent a memorandum to all federal prosecutors setting out DOJ's policies and procedures in the wake of Booker. Today in the Wall Street Journal, Laurie Cohen has this thoughtful article (subscription required) discussing the January 28 memorandum from Deputy Attorney General James Comey to all federal prosecutors entitled "Department Policies and Procedures Concerning Sentencing." Since the WSJ is now the paper of record, I can follow-up by providing the full memo for downloading below.
This Jan. 28 Comey memo is a short but interesting read for a number of reasons. It asserts that federal prosecutors "must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases" and explains that the Solicitor General will ensure DOJ "takes consistent and judicious positions in pursuing sentencing appeals." Also, as stressed in the WSJ article, the memo notes that the Executive Office of US Attorneys is "distributing instructions for reporting (1) sentences outside the appropriate Sentencing Guideline range, and (2) cases in which the district court failed to calculate a Guideline range before imposing an unreasonable sentence."
I would be interested in reader comments on all aspects of this memo. In my view, the substance is neither surprising nor all that provocative, but the tone is fascinating. In particular, I am intrigued by the "keep your chin up" theme: DAG Comey at the outset commends prosecutors "for your flexibility, your creativity and your good humor in these difficult times" and in closing lauds prosecutors' hard work and says that their "ability and dedication will get the job done in these challenging times."
The 6th Circuit speaks on plain error!
Joining the Fourth Circuit which last week came to a similar conclusion in Hughes (basics here), this morning the Sixth Circuit has held in US v. Oliver, No. 03-2126 (6th Cir. Feb. 2, 2005) (available here), that "the district court plainly erred by applying the federal sentencing guidelines as mandatory rather than advisory and thereby sentencing Oliver beyond the sentencing range which the jury verdict and Oliver's criminal history supported."
The Oliver opinion has a lot of interesting language about how courts should be sorting through cases post-Booker, and a footnote distinguishing the Supreme Court's "plain error" ruling in US v. Cotton, 535 U.S. 625 (2002), seems especially noteworthy. These lines in that footnote particularly caught my eye:
Provided that a district court judge metes out a sentence which constitutes a reasonable application of 18 U.S.C. § 3553(a), the sentence may diverge from the applicable guideline range. Thus, even if we conclude that the evidence is "overwhelming and essentially uncontroverted" we cannot know the length of imprisonment that the district court judge would have imposed pursuant to this evidence following Booker. We would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given Oliver the same sentence post-Booker.
With the Oliver ruling, we now have two unanimous panels of two purportedly "conservative" circuits finding Booker errors to constitute "plain error" (which means they lead to reversal even if the issue was not raised in the district court). I would expect this may soon become a consensus view in all the circuits (though, especially after the Booker ruling, I now take nothing for granted concerning court rulings in this area).
Ashcroft's curious parting shot about Booker
As is being widely reported in stories from CNN and the Los Angeles Times and the Washington Post, out-going AG John Ashcroft gave a speech at the Heritage Foundation on Tuesday in which he criticized the Booker ruling, calling it a "retreat from justice that may put the public's safety in jeopardy." In the speech, Ashcroft said Congress, in response to Booker, "should reinstitute tough sentences and certain justice for criminals."
Thanks to the folks at the Heritage Foundation, you can watch the speech via the web from a link here. The discussion of Booker is only a very small part of Ashcroft's speech (it starts just after the 18:30 spot in the video, and runs only about two minutes), and I was intrigued by the entire presentation.
Concerning Booker, I was particularly intrigued by Ashcroft's critique of the Supreme Court's decision to render the guidelines advisory since this was the remedy being vigorously urged by Ashcroft's Justice Department if Blakely was deemed applicable to the federal system!
Consider the fact that, had the Booker remedy proposed by Justices Scalia, Thomas and Stevens carried the day, the federal system would now still have mandatory guidelines in full force that would require "tough sentences and certain justice for criminals." Of course, under the dissenters' remedy, those facts which trigger tough and mandatory guideline sentences would have to be proven to a jury or admitted by the defendant. But requiring the facts of criminal conduct to be so proven is not (at least in my view) such a radical concept.
But, to repeat, after Blakely, DOJ fought tooth and nail in every lower federal court and in the Supreme Court for the guidelines to be declared advisory if Blakely was applicable to the federal system. If Ashcroft is so concerned about "certain justice," why was his Justice Department advocating making the guidelines advisory? We must remember that DOJ essentially won on the remedy issue in Booker. Moreover, I am very confident that Justice Breyer's advisory guideline remedy would not have garnered five votes (including the vote of Chief Justice Rehnquist) were it not for DOJ's vigorous and effective advocacy of an advisory guideline remedy.
Looking forward, if DOJ now decides it was a mistake to seek an advisory system because of the need to ensure "tough sentences and certain justice for criminals," isn't the simple answer for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker? As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act, it would simply require Congress to express its intent for the guidelines to be mandatory even though we now understand the Constitution demands that aggravating facts triggering longer guideline sentences have to be proven to a jury or admitted by the defendant.
February 1, 2005
Judge Bataillon provides another great take on Booker
In this post right after Judge Cassell issued his remarkable Wilson opinion (basics here, commentary here and here), I suggested that many judges would contribute in different ways to our view and understanding of the post-Booker world. Of course, as summarized here, that has proven true in many ways already. And now I can post another path-breaking effort from US District Judge Joseph Bataillon in US v. Huerta-Rodriguez, No. 8:04CR365 (D. Neb. Feb. 1, 2005).
As detailed in posts here and here, Judge Bataillon issued a number of important opinions in the post-Blakely era, and thus I am not surprised he has now answered the post-Booker call. And I am especially excited to see that in Huerta-Rodriguez, which can be downloaded below, Judge Bataillon has developed in remarkable ways some of the due process concepts I have discussed here and here.
The Huerta-Rodriguez decision defies summary, and it is a must-read for everyone trying to think through the post-Booker world. Let me just whet everyone's appetite with a few choice passages:
Although the advisory Guidelines system does not arouse Sixth Amendment concerns to the extent that a mandatory Guidelines system does, ... this is not to say that there are no longer any constitutional constraints on sentencing under Booker, even as applied to the now-advisory Guidelines system. The Due Process Clause is implicated whenever a judge determines a fact by a standard lower than "beyond a reasonable doubt" if that factual finding would increase the punishment above the lawful sentence that could have been imposed absent that fact. [Booker, 125 S. Ct.] at 754-55; Apprendi, 530 U.S. at 494. Booker does not alter these due process constraints on sentencing....
In order to comply with due process in determining a reasonable sentence, this court will require that a defendant is afforded procedural protections under the Fifth and Sixth Amendments in connection with any facts on which the government seeks to rely to increase a defendant's sentence....
There is no authority to support the contention that a defendant can consent to a change in the burden of proof for a criminal prosecution. This is so because the burden of proof is not the defendant's to waive....
The court is cognizant that the limits of due process are defined with reference to the line that separates an element of a crime from a sentencing factor.... That line remains blurred after Booker. In view of the uncertainty surrounding this issue, the court will err on the side of caution in protecting a criminal defendant's constitutional rights. Just as a court should construe a statute to avoid a constitutional infirmity if possible, ... prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional.
In addition to this fascinating work on due process, Judge Battalion's opinion in Huerta-Rodriguez also has a lot to say about the post-Booker concept of reasonableness. And the decision earns extra points for being, I believe, the first post-Booker opinion to cite the US Sentencing Commission's 15-year report. Happy reading.
Multi-branch Booker rumors and suggestions
The Booker buzz is coming from all three branches of the federal government today. I will quickly report some of what I am hearing, make suggestions along the way, and encourage readers who might be in the know to report additional information (and suggestions) in the comments.
The Legislative Branch's response to Booker: I have been hearing buzz now for some time about efforts afoot in the US House of Representatives to craft a legislative response to Booker, and today the buzz has turned into a story that the House has plans for hearings next week. I suggest that hearings, if they are in the works, be sure to include a broad array of constituents, especially persons from the states who are familiar with the pros and cons of advisory guideline systems.
The Executive Branch's response to Booker: I have been hearing buzz now for some time about a memo from Main Justice to all federal prosecutors setting out DOJ policies and procedures in the wake of Booker. I suggest that DOJ make this document publicly available on its website, since blogs should not have to be the paper of record for important materials like this.
The Judiciary Branch's response to Booker: Two components here: (1) I believe the US Sentencing Commission (remember, it's in the Judicial bBanch) has already announced that it will be having hearings about Booker in two weeks. In addition to again encouraging a broad array of participants, I hope the USSC will have preliminary post-Booker sentencing data to share before or during the hearings. (2) I surmise that most federal judges are finding that the Breyer Booker remedy is working pretty well, at least for now, and that judges may soon be collectively advocating the status quo for now (similar to the ABA's recommendation). I suggest that members of the federal judiciary not be afraid to become vocal advocates in the coming policy debate, since district and circuit judges have unique and critical perspectives on both the pros and cons of the pre-Blakely guidelines and the pros and cons of our new post-Booker realities.
The 8th Circuit speaks on reasonableness!
The Eighth Circuit is keeping the Booker cases coming fast and furious (prior rulings here and here and here). Today the court broke at least a little new ground with US v. Yahnke, No. 04-1098 (Feb. 1, 2005) (available here). The Yahnke case involves an upward departure based on the defendant's criminal history, and the decision is a doodle dandy primarily because it seems to be the first case to address the appellate standard of "reasonableness."
Because of the posture of the case (it is not clear Yahnke raised or briefed a Blakely issue), as well as the substantive issues involved (arguably there was no Blakely problem because of the prior conviction exception and/or the defendant's admissions), it would not be wise to draw too many conclusions from the Eighth Circuit's (relatively brief) Yahnke ruling. Nevertheless, this defendant has struck out because the Eighth Circuit found the sentencing reasonable through these key passages:
In this case, the district court followed U.S.S.G. § 4A1.3(a), finding Yahnke's criminal-history category substantially underrepresented the seriousness of his criminal history and the likelihood of recidivism. After Booker, this court determines whether a sentence is unreasonable based on the factors in section 3553(a). Two of those factors are "the history and characteristics of the defendant" and the "need . . . to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(1), (a)(2)(C). Although the district court labeled its reasons in terms of the sentencing guidelines, the sentence is based on a consideration of the factors in section 3553(a)....
The district court's interpretation of section 4A1.3 is reasonable. Neither the guidelines nor the commentary prohibit considering convictions also used to award criminal-history points. Treating alike defendants with similar criminal histories (or likelihood to recidivate) is based on the factors in section 3553(a). See 18 U.S.C. § 3553(a)(2)(C), (a)(6). Thus, some categories of crimes, such as murder, would be underrepresented by an inflexible 3-point addition for any sentence over one year and one month. See U.S.S.G. § 4A1.1(a).
Yahnke was previously sentenced to 50 years for murder, and paroled after serving only about 7 years. The violent nature of the murder conviction, the length of the sentence, and the time actually served support a finding that Yahnke's criminal history category substantially underrepresented the seriousness of his criminal history. See 18 U.S.C. § 3553(a)(1), (a)(2)(C).
The district court also found that Yahnke's parole violations and other uncharged criminal conduct justified an increase in his criminal history. The guidelines suggest that a district court increase a defendant's criminal history based upon information of uncharged criminal conduct similar to the instant offense — which a district court would now consider as part of the "defendant's history" and "recidivism" factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(C); U.S.S.G. § 4A1.3(a)(2)(E).
The district court found that Yahnke had four parole violations, including three failed urinalysis tests. Yahnke also admitted numerous other incidents of criminal conduct — all drug-related but not charged — for which he originally received no criminal-history points. The district court reasonably considered Yahnke's continued drug-related, uncharged conduct as proof that his criminal-history category substantially underrepresented the seriousness of his criminal history and potential for recidivism. See 18 U.S.C. § 3553(a)(1), (a)(2)(C)....
Based on the record, the district court's sentence is reasonable and not an abuse of discretion.
The ABA weighs in on Booker
I just received a copy of the final Recommendation and Report submitted by the Blakely Task Force on behalf of the ABA's Criminal Justice Section to the ABA's House of Delegates (which apparently will be considered officially at a meeting later this month). The document, which can be downloaded below, "urges the United States Congress to take [certain] steps to assure that federal sentencing practices are effective, fair and just and effectuate the goals of sentencing set forth in the Sentencing Reform Act."
In short form, the Task Force is urging that Congress allow the current advisory system to remain in place for at least 12 months to allow sufficient time to evaluate its efficacy. In addition, this report states that, Congress believes that advisory guidelines are unacceptable after this period of study, then it should give careful consideration to a simplified, Blakely-ized federal sentencing system.
Booker insights around the blogsphere
The blogsphere is teeming with Booker buzz providing all sorts of interesting federal sentencing insights and food-for-thought:
- Peter Henning at the White Collar Crime Prof Blog has this post commenting on what Booker could mean for the Enron Nigerian Barge case (which I discussed earlier today at the end of this post), and has an especially interesting post here discussing a post-Booker plea agreement providing for a "stipulated sentencing range that, if not followed by the judge, permits either party to withdraw from the plea bargain." Peter rightly ponders whether this sort of plea term will work to tether judges to the guidelines and how judges might now respond to such tethering.
- The fine folks at the Ninth Circuit Blog provide here a very useful and lengthy outline of federal Booker decisions that have come out as of January 30, 2005, as well as an amicus curiae letter brief filed on behalf of the NACDL in US v. Ameline in this post.
- The Second Circuit Blog here notes a peculiar post-Booker guidelines ruling from the Second Circuit which makes no mention whatsoever of Booker even though the case involved judicial fact-finding.
I hope to be able to do some commentary (and thinking out loud) about both the plea argeement item and also the Second Circuit's Booker-silent ruling later today.
The morning's Booker reports
Today's papers have an array of interesting stories about the impact of Booker on federal sentencing developments:
- This story from Detroit reports on the sentencing of a school official sentenced to 80 months' imprisonment in a fraud case. Repeating a developing pattern noted here and here, this sentence was a bit below the calculated guideline range, but much more severe that the probationary sentence being sought by the defense.
- This story from Houston reports on the appeal in the Fifth Circuit of former Dynegy executive Jamie Olis, whose sentence was increased to 24 years based on judicial fact-finding. Right after Booker, I suggested here that this tough sentence (which has garnered significant media attention) seems especially questionable in light of the parsimony requirement that now controls application of 3553(a) at federal sentencing.
- This story also from Houston reports that US District Judge Ewing Werlein has "declared moot the makeshift sentencing hearing held before jurors" in the Enron Nigerian barge case last November. (Background details on that proceeding are here and here.) My instinct is to say the result of the Nigerian Barge "sentencing trial" should still be relevant to advisory guideline calculation, but it will now be especially interesting to see how this sentencing gets handled in March.
Professor Bibas' latest on Blakely
I just noticed that Professor Stephanos Bibas has posted on the Social Science Research Network an expanded version of his presentation at the Stanford Law School's Blakely conference last October. (Background on the Stanford event can be found here and here, and highlights here.) Entitled "The Blakely Earthquake Exposes the Procedure/Substance Fault Line," the paper's abstract and download information can be accessed here. Here is the full text of the abstract:
This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court's majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes. But the dissent's view was so different that the two sides were speaking past each other. On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade.
Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure. What is a crime -- is it whatever the legislature labels as a crime? And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures? Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending?
Apprendi and Blakely asked the right questions but gave the wrong answers. A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.
January 31, 2005
PLI's upcoming program on Booker
If you just cannot get enough Booker on this blog, you will be happy to hear that the Practising Law Institute has arranged for a "Telephone Briefing," on February 11, 2005 from 1:00pm -- 2:30pm EST to examine the impact of Booker. US Sentencing Commissioner Michael Horowitz and Professor Leonard Orland will participate in briefing, and you can access registration details for the event here and the details for accessing a live audio webcast here. At both links you will see that PLI plans to cover a wide array of key post-Booker topics.
Sentencing sensibilities south of the border
My co-author and co-editor Nora Demleitner called to my attention this interesting article from the New York Times concerning the federal government's agreement with Mexican authorities to extradite to the US Agustin Vasquez Mendoza, who is suspected of orchestrating the killing of an undercover American drug agent in Arizona in 1994. What especially caught our attention was the report that "federal officials have waived the death penalty for Mr. Vasquez, and recommended that any sentence for him include the possibility of parole after 25 years." Given that there has not been parole in the federal system since 1987, we wondered about the terms of this deal.
Nora did some investigating and reported these interesting details about this case and related issues of extradition:
A Maricopa County, Phoenix, Arizona, grand jury indicted Vasquez for First Degree Murder, Conspiracy to Commit Armed Robbery, Kidnapping and Attempted Armed Robbery following the killing of a DEA agent in 1994. Even though Mexican authorities arrested Vasquez in 2000, extradition has been held up in part by Mexico's restrictions on extradition. Though Mexico extradites its nationals, it does not do so if they could either receive a death sentence or a life without a parole term. The Mexican Constitution, according to Mexico's highest court, assumes that every person is capable of rehabilitation and must be afforded the opportunity to show it. This is why US officials had to waive capital charges and agree to recommend parole eligibility after 25 years, assuming Vasquez gets convicted. The Mexican high court's decision not to permit extradition in life-without-parole cases has made extradition with Mexico more difficult. While Mexico isn't the only country with this restriction, it's the most important for the US in terms of extraditions.
Continued Connecticut capital commotion
As well covered by the blogs Kirby's Reports and Three Generations, Connecticut has hit a major roadblock in its efforts to have the first execution in the Northeast in 40+ years. This AP story provides all the details, including the fact that now, under state law, the execution cannot be scheduled for at least a month after a new warrant is issued.
As evidenced by posts here and here at Crime & Federalism, Norm Pattis is not too pleased with these developments. TalkLeft appears pleased. I continue to wonder how much time, money and energy has been expended on litigation concerning this one sad, but symbolic, case.
UPDATE: The New York Times has the latest news on the case here.
Another 8th Circuit Booker ruling
Continuing to set the pace for circuits in rendering Booker decisions, the Eighth Circuit today issued US v. Fox, No. 03-3554 (8th Cir. Jan. 31, 2005) (available here). Legally, there is nothing crafty about the Fox ruling; the defendant had preserved a Blakely claim and the Eighth Circuit does nothing more than remand for resentencing in accordance with Booker. However, factually, the case provides a useful primer on why Blakely and Booker are so consequential. Here's the court's account of how judicial fact-finding initially played a role in Fox's sentencing:
In this case, the jury made a specific finding that Fox was responsible for at least 50 grams of methamphetamine, but less than 500 grams of methamphetamine. The presentence investigation report recommended that Fox be found responsible for 1.814 kilograms of methamphetamine. Fox filed an objection to this recommendation and argued the objection during the sentencing hearing before the district court. However, the district court overruled Fox's objection on this issue and found, based on a preponderance of evidence, that 1.814 kilograms of methamphetamine were attributable to Fox. This resulted in a significant enhancement to the applicable guideline range utilized by the trial court in assessing its sentence.
In addition to providing a window on the types of cases impacted by Blakely and Booker, this case reinforces the my views, developed in this post, about requiring proof beyond a reasonable doubt in any "legislative fix" of Booker.
More insightful defense commentary
Late last week I spotlighted here some provocative posts from Steve Sady of the Ninth Circuit Blog on issues relating to burden of proof, prior convictions and retroactivity in the wake of Booker. I now see that Steve's colleagues have joined the fray with summaries and analysis of some key post-Booker lower court decisions:
- In this post, Steve Kalar discusses Judge Adelman's decision in Ranum as a "defense roadmap." (You can also find Ranum basics here, and my commentary here and here.)
- In this post, Fran Pratt discusses the Fourth Circuit's approach to plain error in Hughes. (My own coverage of Hughes is here, and links to other major post-Booker circuit court rulings are here.)
Will Booker come up during the State of the Union?
Anticipating another exciting week of Booker developments, I have begun pondering whether President Bush might say something about sentencing issues in general, and Booker in particular, in Wednesday night's 2005 State of the Union address. My guess is that the President will not discuss Booker, in part because the decision has been greeted mostly with praise by the media and legal commentators (as reflected in editorials and commentaries collected here and here and here and here), and in part because it seems the Justice Department is itself taking something of a wait-and-see approach to Booker (as suggested by comments discussed here).
It bears recalling that President Bush did discuss sentencing issues in last year's State of the Union. Calling America "the land of second chance," President Bush in his 2004 State of the Union address spotlighted prisoner re-entry issues and proposed "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups." (Some background on these issues can be found in this post.) This speech was one of the many factors which recently led me to speculate about whether there is "new right" on criminal sentencing issues.
Quick review of major post-Booker federal rulings
With the number of major post-Booker opinions starting to add up, I thought it would be a good time to assemble links to the significant rulings that have been discussed on the blog. Of course, as suggested by the newspaper reports on other federal sentencings collected here and here and here and here, the following list (which is in chronological order) is only the tip of the post-Booker iceberg:
Notable Booker rulings from the District Courts
- Judge Cassell's Wilson ruling (basics here, commentary here and here)
- Judge Adelman's Ranum ruling (basics here, commentary here and here)
- Judge Hornby's Jones ruling is here
- Judge Holmes' Barkley ruling (basics here, commentary here)
- Judge Pratt's Myers ruling is here
- Judge Sweet's West ruling is here
Notable Booker rulings from the Circuit Courts
- The 8th Circuit's Coffey ruling is here
- The 11th Circuit's Rubbo and Anderson rulings are here
- The 4th Circuit's Hughes ruling is here
- Notable unpublished rulings in Davis from the 6th Circuit and Tanner from the 9th Circuit are here
- The 11th Circuit's Reese ruling is here
- The 8th Circuit's Parsons ruling is here
I hope readers might use the comments to spotlight any notable opinions I have missed. And, of course, I suspect it won't take long this week for both of these lists to grow.
January 30, 2005
Another district court weighs in on Booker
Like Judge Pratt's potent Myers opinion which took a few days to appear on-line, only just today have I seen the thoughtful discussion of Booker by US District Judge Robert Sweet in US v. West, 2005 WL 180930 (S.D.N.Y. Jan 27, 2005). In West, Judge Sweet begins with this account of the somewhat divergent district court approaches to Booker:
Certain district courts imposing sentences in the wake of Booker have concluded that the Guidelines should remain the dominant or even determinative factor in sentencing analysis. [Citing Barkley and Wilson.] Under 18 U.S.C. § 3553(a), however, the sentencing court is required to consider a host of individual variables and characteristics excluded from those calculations called for by the Guidelines. [Citing Ranum and Jones.]
Interestingly, in West, after a thorough review of the applicable guideline calculations and a distinct review of the factors of 18 U.S.C. § 3553(a), Judge Sweet ultimately imposes a sentence of 60 months' imprisonment in a wire fraud case, which falls within the calculated 57-71 month (advisory) guideline range. (Also of interest, in a footnote Judge Sweet suggests Blakely/Booker precludes him from setting an order of restitution greater than the amount admitted by West in his guilty plea.)
Requiring proof beyond a reasonable doubt in any legislative fix
In this prior post, I highlighted an argument by Steve Sady here that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing. Though it is debatable whether beyond a reasonable doubt must be the applicable standard under existing law, another subject worthy of debate is whether Congress ought to legislatively define beyond a reasonable doubt as the applicable proof standard in any legislative fix to Booker making the federal guidelines mandatory again.
As discussed last November in a post on the brewing battle over the Bowman fix and as further suggested by recent comments from prosecutors (discussed here), the Justice Department seems to view the so-called Bowman fix (aka "topless guidelines") as the best legislative response to Booker. (Background on the Bowman fix can be found here and here.) As I have noted before, DOJ support for the Bowman fix would connote not only that DOJ wants mandatory guidelines, but also that it wants to avoid being required to prove aggravating facts to a jury beyond a reasonable doubt.
Because of the administrative challenges of pleading and proving to a jury all aggravating "guideline facts," it is not surprising that DOJ apparently does not support Blakely-izing the guidelines. Moreover, because having to prove certain facts to a jury could prove prejudicial to defendants in some settings, there are perhaps conceptual justifications for not requiring all aggravating facts to go before a jury. (I develop some of these ideas through the offense/offender distinction in my Conceptualizing Blakely article).
However, I do not see a strong conceptual justification for allowing aggravating guideline facts which mandate longer sentences to be proven only by a preponderance of the evidence rather than beyond a reasonable doubt. Though Watts and Harris (assuming they are still good precedent) suggest the Constitution may allow a preponderance proof standard, applying this civil law standard to facts which mandate increased criminal penalties never seemed quite right to me as a matter of policy.
Consequently, if the Bowman fix or some other proposed legislative response to Booker seeks to make the guidelines mandatory and also seeks to circumvent juries, I would advocate that the applicable burden of proof for aggravating factors still be beyond a reasonable doubt and not merely preponderance of the evidence. Though a lesser burden of proof may be constitutionally permissible, it does not seem fair or just when fact-finding will have defined (and potentially severe) criminal punishment consequences.
The daily post-Booker sentencing anecdote round-up
- This story from Montana reports on a child pornography case in which Chief US District Judge Donald Molloy imposed a sentence of 97 months' imprisonment, which apparently was within the applicable guideline range.
- This story from Kansas City reports on two lengthy prison sentences in serious racketeering case (although the guidelines' recommendations are not indicated).
In related news, this AP story from the past week discusses the struggles of judges as they sort out the meaning of Booker and all the post-Booker cases. This similar piece from Indiana provides a local look at the same issues.
Thinking about what DOJ is thinking about
This interesting item from the Virginia Law School's website, which reports on a speech by Paul McNulty, US Attorney for the Eastern District of Virginia, has me thinking about what folks inside the Justice Department are thinking about as they consider post-Booker legislative and litigation strategies. Here are some of the choice passages from the story:
McNulty said the [Booker] ruling will make it difficult to convince defendants to plea bargain, because they may think they'll get a better deal from a judge.... Drug cases in particular depend on individuals on the inside of an operation confessing and ratting out other suspects.
"If the bad guys believe that they're better off going to a judge to get sentenced rather than agreeing with the government to cooperate — getting certain benefits for that under the sentencing guidelines as they have in the past — then our ability to get cooperation is going to go down substantially," he said. He suggested that some federal judges who think gun cases belong in state courts might deliver shorter sentences to make their point....
"Congress may react to Booker by passing legislation that addresses the Sixth Amendment problem and still requires mandatory adherence to the guidelines," McNulty said. Whether or not Congress will react "will probably be the result of how judges begin to act with this new flexibility." He said that in the 20 to 25 sentences handed down in his district since the decision, judges have stayed within the federal guidelines, except in one drug case in which a judge gave a shorter sentence. He doubted that sentences would remain so consistent in other districts, however.
McNulty suggested that the most feasible way to fix sentencing guidelines and make them mandatory may be for Congress to use what has been called the "Bowman fix," after its creator, Indiana University law professor Frank Bowman. The fix changes the maximum guideline range to the statutory maximum, and the court could decide only what the low end would be. While critics denounce the idea of potentially even tougher sentences, McNulty said judges in the past rarely increased sentences from the guideline maximum, and would likely stay within the maximum of the old guidelines rather than approach the higher statutory maximum.
These comments, though obviously not official DOJ policy, are both revealing and not especially surprising concerning the prosecutorial take on Booker. As discussed in this post (which prompted particularly insightful comments), the potential loss of substantial assistance bargaining leverage may be what troubles DOJ most about the universe created by Booker. And McNulty's ready recitation of post-Booker sentencing outcomes in Virginia suggests DOJ is monitoring closely all the post-Booker work of district courts.
Finally, the stated affinity for the Bowman fix suggests that DOJ does not merely want mandatory guidelines; as suggested by Justice Stevens in his Booker dissent, the easiest way for the guidelines to be mandatory again would be for Congress to simply provide for jury factfinding of aggravating factors within the existing system. The Bowman fix is only needed if DOJ wishes to make the guidelines mandatory and wishes to avoid having to prove aggravating facts to a jury beyond a reasonable doubt.