Sentencing Law and Policy

Another notable district court fast-track ruling

A kind reader kindly forwarded to me the strong sentencing opinion by SDNY District Judge Robert Sweet in US v. Santos, No. 05 CR 522 (SDNY Dec. 12, 2005) (available for download below).  In Santos, Judge Sweet gave a substantially shorter non-guideline sentence (24 rather than the 57 month guideline sentence) primarily because of (1) fast-track disparity and (2) the "double-counting" involved in increasing the defendant's offense level and the criminal history category with the same drug conviction.

Download sweet_fast_track_opinion.pdf

So many criminal history stories in the naked city

As detailed in some of the posts linked below, the imposition of long sentences often turn on the vicissitudes of criminal history.  Another case proving this reality comes today from the Seventh Circuit's decision in US v. Sperberg, No. 04-4135 (7th Cir. Dec. 19, 2005) (available here).

In Sperberg, the defendant received a sentence of 17.5 years for being a felon in possession of a firearm "because the district judge concluded that he had been convicted of at least three other 'violent felonies'" (which formally turned the defendant into an "armed career criminal").  But, as explained by the Seventh Circuit's opinion, those violent felonies included an incident of drunk driving and an incident involving the threatening a security guard while stealing lobster tails from a grocery store.

Related posts:

• The harsh consequences of old criminal history
• The diktats of criminal history and Booker's potential virtue
• More on the joys of criminal history diktats
• The law and policy of criminal history

Recapping a busy first half of the last month of 2005

This marks my 2500th post since I started this blog a little over 18 months ago, and if I had the time I might assemble a comprehensive greatest hits list.  (My first quaint post on Blakely — Blakely..... WOW!! — would surely make the list.)  But, this busy time of year, I barely have time to assemble just some of the highlights from the first few weeks of an exciting December in the world of sentencing:

STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• Minnesota Supreme Court limits reach of "prior conviction" exception
• Indiana Supreme Court gives broad interpretation to prior conviction exception
• Great Alaska opinion on Blakely and consecutive sentencing
• More academic arguments for Blakely retroactivity
• Notable new paper on voluntary guidelines
• Latest FSR issue on Blakely in the States

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Further reports on 1st Circuit crack/cocaine argument
• Second Circuit upholds sentencing based on acquitted conduct
• Interesting Second Circuit ruling on use of unadjudicated juvenile conduct
• Fifth Circuit officially rejects retroactive application of Booker
• A reasonableness two for Tuesday from the 7th Circuit
• Eighth Circuit speaks to post-Booker reliance on hearsay at sentencing
• Big sentencing doings in the Ninth Circuit
• Tenth Circuit addresses Booker and fast-track issues
• Eleventh Circuit opines at length about post-Booker sentencing and review
• Two Booker pipeline cases of note from the DC Circuit

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Interesting discussion of fast-track disparities
• Booker discussion topic: are departures obsolete?
• Interesting Olis developments
• A white-collar sentencing in scarlet and gray
• Interesting sentencing developments in HealthSouth case
• A more formal request for more post-Booker data
• Oh data, data, data, I now have lots of clay...

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• December dramas for the death penalty
• Capital reading to mark a "grand" milestone
• Debating religion and the death penalty
• Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory
• Schwarzenegger denies Tookie Williams clemency
• The death penalty debate continues on...
• New Jersey death penalty moratorium in the works
• White paper critical of Alito's death penalty work

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Important work on drug sentencing in New Jersey
• NJ Commission releases major report on drug-free zones
• New report on NY reform of Rockefeller drug laws
• In praise of Slate's recent sentencing coverage
• The number 1,000,000 in sentencing perspective

Big sentencing doings in the Ninth Circuit

While I was hostage to technology on Friday, the Ninth Circuit issued a set of sentencing rulings, one of which is a potential Booker blockbuster.  Folks interested in guideline technicalities will want to check out US v. Hernandez-Hernandez, No. 02-02127 (9th Cir. Dec. 16, 2005) (available here) (addressing counting of prior convictions), and US v. Speelman, No. 04-30067 (9th Cir. Dec. 16, 2005) (available here) (addressing scope of an appeal waiver and double-counting claim).  But everyone following the post-Booker world should take the time to read US v. Menyweather, No. 03-50493 (9th Cir. Dec. 16, 2005) (available here).

The decision in Menyweather suggests that, in the Ninth Circuit, defendants should expect fair weather (and prosecutors should expect stormy weather) on appeals from sentences below the guidelines.  Among other notable aspects of the majority opinion, the Menyweather court says:

Because Booker excised the de novo review of departures previously mandated by 18 U.S.C. § 3742(e), 125 S. Ct. at 765, we hold that the appropriate standard for reviewing the district court's determination of its departure authority is abuse of discretion, discretion, see Koon v. United States, 518 U.S. 81, 98-100 (1996), the standard in place before the statutory de novo review was enacted in 2003.

Menyweather shows that the Ninth Circuit views departures as an integral part of post-Booker sentencing (unlike the Seventh Circuit, which has said that "the concept of 'departures' has been rendered obsolete in the post-Booker world").  Menyweather also shows that a district court persistent in defending the grounds for a departure will likely prevail eventually: after having twice remanded for resentencing, the Ninth Circuit this time affirms an eight-level downward departure, based on diminished capacity and family circumstances, which allowed the defendant to avoid any serious prison time.

Writing a strong dissent, which has already garnered attention elsewhere, Judge Kleinfeld complains that the majority is functionally abdicating its post-Booker responsibilities:

The new sentencing regime does not justify this abdication of our duty of review.  The majority's application of review for abuse of discretion equates it with no review....

Now that the guidelines have been reduced from mandatory to advisory status, our review authority may be more rather than less important than it was before, to prevent idiosyncracy from altogether overtaking sentencing consistency.

Further reports on 1st Circuit crack/cocaine argument

As detailed in prior posts linked below, the First Circuit heard argument earlier this month in government appeals from sentencing decisions by RI Chief District Judge Ernest Torres in which he decided not to follow the guidelines 100:1 crack/powder ratio.  The Providence Journal now has this effective article reporting on the arguments.  Also, the PRACDL Blog has this comment about the case.

Related posts:

• Ground zero for post-Booker crack/powder debate
• A fascinating report on a Booker crack/cocaine oral argument
• More on First Circuit crack/cocaine oral argument (includes audio of argument)
• The government's argument against crack cracking the guidelines
• Effective article covering crack/powder cocaine developments