February 12, 2005
Celebrating a month of Booker
Today marks one month since Booker was handed down, and a quick Westlaw search brings up 132 on-line federal decisions (and 46 state decisions) mentioning Booker. Of course, that's only the visible tip of the Booker iceberg, since Judge Hinojosa's testimony to the House on Thursday reported on 733 cases sentenced on or after January 12 as of February 4. And that number is also "light" since pre-Blakely/Booker data suggest that the federal sentencing system was imposing over 5000 sentences each month. (I continue to wonder how much Blakely and Booker could depress the overall number of cases brought in the federal system.)
To celebrate a month of Booker, my terrific research assistant create yet another printer-friendly Word document version with imbedded links and a TOC of all the text of this blog since Booker was handed down. You can download all 142 pages below.
And if anyone is nostalgic for those halcyon days before Booker consumed this blog, my RA also created a document, available below, with all the posts from the start of the year through the day before Booker arrived.
In other important sentencing news
As is obvious to all readers, the Booker story and the past, present and future of federal sentencing has now fully consumed me and this blog. And, as suggested by this calender, these hearings, and all the circuit court and district court action, the Booker story seems unlikely to calm down anytime soon.
But, critically, there is a lot more to sentencing law and policy than just Booker. Of course, there is the on-going Blakely in the states story, about which I hope to post some news later this weekend. Moreover, there are so many issues of concern that have nothing to do with Blakely or Booker.
Fortunately, others do a great job covering important sentencing issues while Booker-mania rages on. For example, TalkLeft has a great post on drug sentencing issues entitled Drug Courts: Yes. Mandatory Minimums: No. And the Death Penalty Information Center always has highlights from important capital sentencing developments here.
And, meriting a special shout-out, Grits for Breakfast continues to do a masterful job covering law and policy developments surrounding Texas's on-going struggle with its prison overcrowding problems, as detailed in amazing posts here and here and here. I am particularly fond of the conclusion that the developments in Texas provide "more evidence of Berman's observation here that a 'new right' may be developing on criminal justice reform."
Reports on recent Booker district court sentencings
As evidenced by all the action detailed here and here and here and here, the federal circuit courts are taking over the Booker headlines as they try to sort through all the "pipeline cases." But, in the end, the mess of all these pipeline cases (which I will comment on later this weekend) are just short-term transition realities of the Booker shift. Of greater long-term importance is how Booker gets applied in the district courts.
I have stressed here (and will stress to the Sentencing Commission next week) the importance of focusing upon data rather than anecdote when assessing how Booker is really being applied in the district courts. But, because I do not have access to such data, I have to report here only the interesting anecdotes I find in the papers. So, with that caveat, here come notable post-Booker district court sentencing anecdotes (most of which do not actually discuss Booker):
- This article from Peoria, Illinois reports on US District Judge Joe McDade's decision to impose a 10-year sentence in a crack case, which was below the guidelines range for crack but seemed, according to the story, to bring the sentence more in line with powder cocaine sentencing levels. The article suggests Judge McDade may have, as I suggested here, concluded in the crack/powder context that sentencing uniformity may be better achieved by not following the guidelines (and, if it plays in Peoria). The article also has this notable quote from the Judge McDade:
Given the Draconian punishment associated with crack cocaine, to follow the guideline range for this case would go beyond what is needed to serve the purpose of sentencing," McDade said. "Respect for the law doesn't always mean sending people to prison for as long as you can."
- This story from California reports on a defendant sentenced to 51 months for theft and possession of explosives, which was, according to the article, "the maximum allowed within federal sentencing guidelines."
- This story from Texas reports on a felon getting additional federal time on top of a state sentence on a gun charge, and it appears from the facts that federal prosecutors may have been able in this case to use new Booker discretion to their advantage.
- This story from Philadelphia reports on a long probation sentence imposed on a plumber involved in paying kick-backs to a corrupt city clerk, which was in line with the federal prosecutor's recommended sentence.
- This story from Orlando reports on a federal re-sentencing (prompted by non-Booker issues) that involved a long sentence imposed, and then reimposed, on a non-violent, first offender in a high-profile case involving the theft of moon rocks. (You just can't make this stuff up, can you?)
More (a lot more) notable circuit Booker work
It now seems you cannot even take a Friday night off without missing a lot of Booker action from the circuit courts. In addition to the four circuit dispositions noted yesterday here and here and here, I now can report on six more noteworthy Booker rulings coming from the Second, Fourth, Eighth, Ninth and Tenth Circuits. Here I will provide just a quick summary of the rulings, with links, and later today I hope to comment more broadly on all the circuit action.
From the Second Circuit, US v. Konstantakakos, 2005 U.S. App. LEXIS 2250 (2d Cir. Feb. 11, 2005) (available here), the court simply remands one defendant's case in accord with Crosby, but then it affirms the sentence of another defendant who did not raise a Sixth Amendment claim. This case thus leads me to wonder about the appropriateness of affirming sentences imposed under (now inoperative) mandatory guidelines even when the defendant is appealing on grounds others than the Sixth Amendment.
From the Fourth Circuit, in US v. Washington, 2005 WL 326986 (4th Cir. Feb. 11, 2005) (available here), the court follows the circuit's prior work in Hughes to find plain error based on an obstruction of justice enhancement. Notably, the Washington court does not address the on-going inter-circuit split over application of the plain error standard (and the facts of Washington suggest the 2d Circuit's approach in Crosby and the 11th Circuit's approach in Rodriguez might have led to a different result). Also, the Washington court asserts that, even though the Sixth Amendment claims was not raised in the defendant's opening brief and such claims "are normally deemed to have been waived, the Booker principles apply in this proceeding because the Court specifically mandated that we 'must apply [Booker] . . . to all cases on direct review.'"
From the Eighth Circuit, in US v. Nolan, 2005 WL 323696 (8th Cir. Feb 11, 2005) (available here), the Court in a footnote rejects a Blakely/Booker claims and upholds judicial fact-finding concerning the nature of the defendant's prior convictions in an application of the Armed Career Criminal Act. Based on the Harris limit and Almendarez-Torres exception to Blakely/Booker, this ruling seems sound, but the case highlights the impact and import of these seemingly shaky precedents.
From the Ninth Circuit, in US v. Ruiz-Alonso, 2005 WL 326839 (9th Cir. Feb. 11, 2005) (available here), the court in a final paragraph ordering a Booker remand uses language which could suggest a remand standard even broader than the Ninth Circuit's discussion in Ameline. In Ruiz-Alonso, the government was appealing a downward departure, and the Ninth Circuit concluded: "Because we cannot say that the district judge would have imposed the same sentence in the absence of mandatory Guidelines and de novo review of downward departures, we vacate the sentence and remand for resentencing in a manner consistent with Booker."
From the Tenth Circuit, we get two notable Booker opinions, and, interestingly, the one to be published is the shorter seemingly less consequential one, US v. Lynch, 2005 WL 327710 (10th Cir. Feb. 11, 2005) (available here). In Lynch, the district court had "Blakely-ized" at sentencing, considering only the defendant's admitted drug quantities, and the government appealed. These facts brought the case directly in line with Fanfan, and the 10th Circuit followed the Supreme Court's lead by simply ordering resentencing under the new Booker rules.
More interesting, but left unpublished, is US v Garcia-Castillo, 2005 WL 327698 (10th Cir. Feb 11, 2005) (available here), which concerns Blakely's applicability to a restitution order. Though the Garcia-Castillo court ultimately rules that, for "any one of three independent reasons, we reject Garcia-Castillo’s Blakely/Booker argument," along the way the 10th Circuit covers a lot of important (and disputed) ground concerning the scope of Blakely, the nature of Blakely admissions, and the application of plain error.
WHEW! I am sure I have missed some nuances in these cases, and readers are highly encouraged to use the comments to amplify any and all important issues raised by these cases.
February 11, 2005
Another circuit split(?) on appeal waivers
The Eleventh Circuit keeps the Booker fun going today with its decision today in US v. Ginard-Henry, No. 04-12677 (11th Cir. Feb. 11, 2005) (available here). In Ginard-Henry, the Court essentially replays, in a slightly fuller form, its prior post-Booker ruling in Rubbo that refused to consider a Booker claim due to the defendant's appeal waiver. Explaining that defendant's "Apprendi/Blakely/Booker claim on appeal does not fall within any of the exceptions to his appeal waiver," the Court rules "this appeal was properly dismissed, and Grinard-Henry’s motion for reconsideration is denied."
Since Ginard-Henry does not appear to break new ground for the Eleventh Circuit, I was at first not inclined to do a post on the decision. But then I recalled have earlier this week, the Eighth Circuit in Killgo (discussed here) concluded that, despite a defendant's appeal waiver blocking consideration of a Booker claim, it should still review the defendant's sentence for reasonableness. The Eleventh Circuit did not do any such review in Ginard-Henry, so I think we have yet another circuit split in the handling of "pipeline cases."
A 3d Circuit (unpublished) Booker remand
A reader just pointed me to the Third Circuit's recent unpublished decision in US v. Mortimer, No. 03-4174 (3d Cir. Feb. 10, 2005) (available here), which I believe is the first decision from that court remanding a case for resentencing in light of Booker. The decision does not discuss plain error at all, though that doctrine is arguably applicable on the facts. The Mortimer court, after reviewing the Booker holding, simply states:
The Supreme Court also held that the Booker decision applies to all cases on direct review, and remanded the cases involved in Booker for resentencing. Id. at 769. Accordingly, Booker applies to the case before us. Having determined that the sentencing issues Mortimer raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in light of Booker.
The reader who spotlighted Mortimer, though recognizing such an unpublished disposition is "not precedential," nonetheless expressed hope that the decision suggests that a "forthcoming Third Circuit decision will recommend that all pending direct appeals raising legitimate Booker issues be remanded for resentencing."
The active 6th and 11th Circuits stay Booker active
Continuing the Circuit trends noted here, the Sixth and Eleventh Circuits are keeping Booker busy (with decisions dated yesterday, but just made available today).
The Sixth Circuit's decision in US v. Watts, No. 03-6124 (6th Cir. Feb. 10, 2005) (available here) is an unpublished disposition that avoids creating too much further plain error confusion by simply citing both Oliver and Bruce when stating that, because of "judicial fact-finding undertaken in determining his sentence, . . . it is necessary that the district court reconsider defendant's sentence." Appellate Law & Practice here astutely suggests that, with Watts, "the Sixth Circuit may have just given up trying to explain the results of cases involving plain error review in Booker cases."
The Eleventh Circuit's decision in US v. Frye, No. 03-16377 (11th Cir. Feb. 10, 2005) (available here) in sharp contrast talks through the Court's decision to affirm the defendant's sentence despite the fact it was imposed under mandatory guidelines. The Eleventh Circuit concludes that "Frye in pleading guilty admitted the facts that support the enhancement of his sentence [and thus] there is no violation of the Sixth Amendment." The Eleventh Circuit then affirms the sentence in Frye without further discussion.
Concerning Frye, Appellate Law & Practice notes here that the Eleventh Circuit had to "extrapolate on things that the defendant admitted" to find no Sixth Amendment problem with the guideline enhancements applied in the case. Moreover, and perhaps even more troublesome, the Eleventh Circuit does not conduct a harmless error review of the application of mandatory guidelines in Frye's case, which is what the final sentence of Justice Breyer's remedial opinion for the Court in Booker seems to suggest is applicable in a case of this sort (as the Tenth Circuit explained last week in Labastida-Segura last week (detailed here)).
Mark your Booker calenders
UPDATE: Some additional events have been added below.
Not surprisingly, the list of noteworthy Booker events grows every day, and here I spotlight some upcoming dates marked on my calender:
Today: As previously detailed here, this afternoon the Practising Law Institute has arranged for a "Telephone Briefing" at 1:00pm EST to examine the impact of Booker with USSC Commissioner Michael Horowitz and Professor Leonard Orland.
Feb 15-16: The USSC conducts Public Hearings in DC, and at the USSC website are the full Public Hearing Agenda, the circulated list of Topics of Discussion, and even a very personal Sample Hearing Invitation.
Feb 16: The ACS at NYU Law School is hosting A Panel Discussion entitled "The Future of Federal Sentencing After Booker / Fanfan" with Judge John Gleeson, AUSA Daniel Alonso and Professor Rachel Barkow. The event is in Vanderbilt Hall Room 210 at 6:30pm and is open to the public.
Feb 24: As detailed in the flyer which can be downloaded here, the Association of the Bar of the City of New York has an impressive looking evening program planned entitled simply "Federal Sentencing After Booker/Fanfan". I was asked to note that "the Association recently lowered the fees for this course for those in public interest/public service to $40 for Association members and $70 for non-members." Download ny_city_bar_booker_flyer.pdf
Feb 24: I see from the PRACDL Blog this notice of a major Booker/Crawford event to include Judge Nancy Gertner and attorney Peter Goldberger. (How these folks were convinced to leave the Northeast in February to go to Puerto Rico I'll never know.)
Feb 25: As detailed here, the Association of Federal Defense Attorneys has planned a full-day seminar, entitled "Federal Sentencing In A New Era After Booker/Fanfan," which takes place at Los Angeles Airport Westin Hotel. I am very pleased to be participating in this event (and not only because it allows me leave Ohio for LA in February).
March 3: As detailed here, Harvard Law School's Journal on Legislation has a Symposium entitled "Criminal Sentencing at the Crossroads," which will focus on Blakely and Booker and has impressively constituted "policy" and "practitioner" panels.
March 15: As detailed here, ALI-ABA has arranged for a webcast on "Federal Sentencing Guidelines after Booker and Fanfan." I am very pleased to be participating in this event.
I am sure there are a host of other Booker events in the coming weeks, and readers are encouraged to use the comments or to send me an e-mail with pertinent dates and places for events that may be of general interest.
Reports on Booker circuit action
The press and blogsphere have interesting Booker circuit reports this morning: the Ninth Circuit's recent Ameline ruling (basics here, commentary here) is reviewed in this law.com article; the Third Circuit Blog is reporting here "persistent rumors that the 3rd Circuit will be issuing a broad ruling 'soon' on Booker"; and this Bloomberg column provides a remarkable account of the Fifth Circuit oral argument in the appeal of Jamie Olis' 24-year prison term, which the piece says "may be the longest ever for securities fraud."
As we approach the one month mark since Booker was handed down, I continue to be intrigued (as previously discussed here) by the circuit contrasts in the pacing and process of Booker decision-making:
- We have still not heard an official Booker peep from four circuits: the First, Third, Fifth and DC.
- Four other circuits have been content with one major ruling, though these rulings have covered disparate topics: the Fourth in Hughes covered plain error; the Seventh in McReynolds raced to address retroactivity; the Ninth in Ameline covered plain error and additional procedural issues; the Tenth in Labastida-Segura addressed harmless error.
- The other four circuits have been Booker busy: the Second Circuit through Crosby has spoken broadly to many issues, and a few smaller opinions have filled out the circuit story; a half-dozen dizzying plain error rulings in the Sixth Circuit have made my head hurt; the Eighth has had a steady drum beat of smaller opinions on a range of issues; and the Eleventh in Rodriguez picked a plain error fight with other circuits after having decided some smaller issues soon after Booker.
Death to take a holiday in NY?
The New York Times is reporting here that it is now seeming unlikely that New York we re-enact the death penalty after the state's highest court declared the current statute unconstitutional last June in People v. LaValle (background here). The article effectively documents the on-going political debate, while providing this account of New York's decade of experience with the death penalty:
Since 1995, an estimated $175 million or more has been spent on death penalty cases, but there have been no executions. Prosecutors have sought death against at least 55 defendants, and juries have sentenced seven to death. Of those, five sentences were reversed by the Court of Appeals, and two are still on appeal.
In other capital news, this Los Angeles Times article provides an interesting account of the California Supreme Court's decision yesterday concerning the procedures for death row inmates to raise claims that they are mentally retarded. That Hawthorne decision is discussed in this post.
More reports on the House hearing
Providing additional coverage of the House Booker hearing on Thursday are this Wall Street Journal article (subscription required) and a Bloomberg news report. Spotlighting the data/anecdote concerns detailed in this post, I found notable that the AP's headline (linked here) was "Data: Judges Adhere to Sentence Guidelines," while the Bloomberg piece carries the headline "Bush Administration Says Sentence Disparities Rise." Life is all a matter of perspective, ain't it?
Providing additional perspective on the hearing, an insightful reader in attendence shared with me (and has allowed me to share with everyone) these thoughts and observations:
1. Republicans on the subcommittee had some great questions and were not lined up behind Jay Apperson. He seemed to supply Chairman Coble questions, but the rest were clearly on their own. I was impressed by the thoughtfulness and depth of their inquiries; it was one of the best hearings I've ever attended (which, of course, is not saying much in light of the usual level of posturing, but I really was pleasantly surprised.) For example, Rep. Flake from Arizona asked Wray why not wait a year and see how things go. Others revealed similar depth. In contrast, the dems (with the outstanding exception of Bobby Scott who was his usual well prepared and unflappable self) did not seem as well prepared and used their time to talk about the crack/powder disparity (a subject of course worth ranting about, but this is not the time and place to use one's entire allotment of time on the subject it strikes me); they didn't use their time to highlight contradictions, ask probing questions.
2. There was some playfulness today. For example, Frank Bowman said he felt like Ricky Ricardo saying to Lucy "I got a lot of 'splainin' to do" before commencing to recant [his support of the Bowman fix], and Judge Hinojosa later was moved to quote RR's line "Aye, Carumba!"
3. Frank Bowman came through with flying colors and got off easy in the questions; I think his falling on his sword was wasted on the members of the Committee but means a great deal to the others.
4. Collins was the stalking horse. I wonder what is keeping the DOJ so quiet, though they have begun to signal their next moves. Is it really only that Gonzales is just on board?
5. The record is open for a week. If anyone sees something that ought to be put in after reading the testimony, do so. I think one can send such things to Rep. Scott.
6. Mr. Wray was asked by Bobby Scott to back up his repeated, and unsupported assertions that the federal sentencing guidelines have caused the 30 low in the crime rate. He couldn't, but Wray promised to get back to the Committee. That should be interesting. Mr. Scott cited a study from Virginia to the effect that when Project Exile was instituted in Richmond Virginia, the crime rate fell. However, in the cities outside Richmond that did not participate in P.E., the crime rate fell even more.
7. There is some concern that the Commission might try to draft some legislation to address concerns raised by DOJ. It strikes me that they will do best doing what they do best. Sending draft language at a time when the rest of the world is saying, let it work for awhile, sends the wrong message.
February 10, 2005
A change in time en bancs Ameline?
In yesterday's Ameline decision from the Ninth Circuit (basics here, commentary here), the final sentence read "No petition for rehearing will be entertained and the mandate shall issue forthwith." But in an order filed today, available here, the Ninth Circuit panel provides:
The opinion filed on February 9, 2005 is amended by deleting the last sentence on page 23. The mandate issued on February 9, 2005 is recalled. The parties shall file any petition for rehearing and/or rehearing en banc no later than February 18, 2005. In the event that such a petition is filed, a response shall be filed within seven days thereafter. See Fed. R. App. P. 40(a)(1), 35(c).
Readers are encouraged to use the comments to establish a betting line for whether Ameline will go en banc.
House hearing highlights
The AP has this report on the Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" conducted this morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security. Relatedly, here are my recent posts covering the event:
- More advice encouraging Congress to go slow
- The House hearing and data versus anecdote in sentencing policy-making
- A viewer's guide to Thursday's House hearing
- Gearing up for Booker hearing week
More advice encouraging Congress to go slow
With the exception of Daniel Collins, who in his testimony to the House Subcommittee today urged "that Congress act — and act promptly", the developing consensus seems to be the "go slow" approach in response to Booker. (Consider that Professor Frank Bowman's testimony here in big, bold letters provides "A Counsel of Caution".)
Adding their voices to this consensus are the folks at The Constitution Project's Sentencing Initiative, a bipartisan blue-ribbon committee formed in the wake of Blakely (first discussed here, membership here). In a letter to Congress, which can be downloaded below, the co-chairs of the Initiative — none other than Edwin Meese III, Attorney General under President Reagan, and Philip Heymann, Deputy Attorney General under President Clinton — state that "Congress should respond to the Booker decision with caution for at least four reasons." The letter also points out long-term flaws in the federal guidelines that need fixing and recommends against "topless guidelines."
In a similar vein, I received a copy (and provided for download below) an article about Booker by SDNY US District Judge Lewis Kaplan which reviews the new federal sentencing landscape and then closes with this heartening passage:
My central message instead is that this is a moment for reflection, not for hasty action. We do not know how Booker will evolve if the courts are left to work out these problems. That is something well worth knowing before the legislature acts. Further, I respectfully suggest that the courts and the Congress are not, and should not become, adversaries here. Whatever the initial reaction to the sentencing guidelines may have been almost twenty years ago, and despite the well known controversy about the guidelines and the limitations they placed on judicial discretion, I suspect that the area of agreement between Congress and the courts may well be larger than either believes.... So let us try to remember that the things that bind us together are far greater than whatever may divide us. Let us reason together.
Judge Cassell speaks on retroactivity
I have generally avoided reporting on the significant number of district court decisions that have denied efforts by defendants to raise Blakely/Booker issues through habeas actions. But I did spotlight Judge Panner's Siegelbaum opinion, since it provided perhaps a glimmer of hope on retroactivity, and today I am inclined to spotlight Judge Cassell's effort in Rucker v. US, Case No. 2:04-CV-00914PGC (D. Utah Feb. 10, 2005) (available here) because of its thoroughness and notable dicta.
Not suprisingly, Judge Cassell, in line with the Seventh Circuit's work in McReynolds, concludes that (1) the "approach to sentencing required by the Blakely and Booker decisions is a new rule," (2) "it is a procedural rule about the allocation of fact-finding power between judge and jury and about proof beyond a reasonable doubt," (3) the "Blakely/Booker rule does not implicate fundamental fairness," and thus "the Blakely/Booker rule does not apply retroactively to Mr. Rucker (and others whose convictions became final before Blakely)."
Post-Atkins capital sentencing procedure
Thanks to Howard Bashman at How Appealing, I see that the California Supreme Court has issued this interesting opinion in In re Hawthorne, S116670 (Cal. Feb. 10, 2005), addressing the procedures for sorting through a capital defendant's claim he is mentally retarded and therefore, due to the decision in Atkins v. Virginia, 536 U.S. 304 (2002), no longer subject to execution. In Atkins, the Supreme Court declared that the Eighth Amendment no longer permitted the execution of persons suffering from MR, but ever so thoughtfully left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."
Hawthorne explains that California passed Atkins legislation for pre-conviction proceedings, but left the courts with the task of determining how to resolve post-conviction claims of mental retardation. The decision is somewhat technical, but an interesting read for its coverage of how various states have being sorting through the myriad procedural issues that the Supreme Court punted to the states in Atkins. (There is, I believe, no truth to the rumor that the Supreme Court is waiting for a petitioner named "South Beach" to take these issues up again.)
The House hearing and data versus anecdote in sentencing policy-making
The Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" conducted this morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has concluded, and I am pleased to see that all of the witnesses' written testimony is now linked at this official site. (Also there now is the Chairman's opening statement, and I am hopeful a full transcript of the proceedings will be provided in due course.)
Much of what was predicted here came to pass, and Daniel Collins' advocacy of topless guidelines reinforced the prosecutorial tilt in the assembled witnesses. The interesting Q and A, in which Representatives often spotlighted pet issues with the federal sentencing system, merits its own future post and analysis. But first I must make some observations based on the written testimony concerning the use of data and anecdote in formulating federal sentencing policy and federal sentencing reforms.
First, Chair Hinojosa and the USSC staff are to be greatly lauded for including in his written testimony data on post-Booker sentencings to date. Significantly, that data suggest, as noted previously here, that we may actually be seeing an upward movement in the length of post-Booker sentences, although the data are still very preliminary. What's most important and impressive is the USSC's obvious commitment to data analysis and a data-driven response to Booker.
Second, Assistant AG Christopher Wray is likewise to be lauded for closing his testimony by stressing the importance of sentencing data and the need for "accurate, real-time information on sentencing ... to play an appropriate and effective role in the public debate." But Wray should also be criticized for his anecdotal attack on two post-Booker sentencings and for a failure to provide any of the data which, as detailed in the Comey memo and as suggested in this speech by a US Attorney, clearly are being collected and analyzed by DOJ in real-time. The cynic in me is inclined to assume that the data DOJ has assembled to date does not support its claims as much as selected anecdotes. (Relatedly, it is notable that DOJ is not spotlighting or complaining about individual cases in which an imposed sentence was unduly harsh; DOJ seems really concerned not about undue disparity but rather undue leniency.)
Third, speaking of data and anecdotes, I was intrigued to see Daniel Collins, one of the chief proponents of the Feeney Amendment to the PROTECT ACT, stress USSC data in his testimony to argue that "We should not make fundamental structural changes solely to accommodate a problem that does not occur in 99.2% of the cases." That statement struck me as jarring given that the Feeney Amendment, especially as originally proposed, sought to eliminate virtually all downward departures even though DOJ had identified downward departures as a major concern in some economic and sex offense cases and even though USSC statistics revealed that DOJ was successful in reversing 75% of the departures it appealed. (The materials in this issue of the Federal Sentencing Reporter provide more background on the Feeney Amendment and prior efforts by Collins to engineer fundamental structural changes to the guidelines to address a problem seemingly evident in only a relatively small number of cases.)
February 10, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Still more Booker wisdom from the Sixth Circuit
Today's daily dose of Booker wisdom from the Sixth Circuit comes in the decision of US v. Milan, Nos. 02-6245/6302 (6th Cir. Feb. 10, 2005) (available here), which speaks on plain error and a host of interrelated issues in the course of vacating one defendant's sentence and affirming another's. Both ruling are interesting and at times curious.
On plain error, after a long review of the basic legal standards, the Milan court remands one defendant's sentence which had been calculated under the mandatory guidelines with reliance on judicial fact-finding. And, at the end of this discussion, the court notes all recent circuit case law and explains why it thinks Oliver (6th Circuit) and Hughes (4th Circuit) take the right approach to plain error while Rodriguez (11th Circuit) and Crosby (2d Circuit) have it wrong:
In our judgment, a critical aspect of Booker has escaped the Eleventh and Second Circuits' thinking on these matters — namely, that the Supreme Court remanded Booker's case for resentencing. It is certainly our obligation as courts of appeal to carefully consider what the Supreme Court said in Booker. Nevertheless, we cannot ignore what the Court did. At the very least, a remand for resentencing of Booker must rest on a decision that the error in his case was reversible, i.e., was not harmless and affected Booker's substantial rights.... In fact, as our colleagues observed in Oliver, we can safely conclude that, in the ordinary case, a Booker-type Sixth Amendment violation affects substantial rights. But the Supreme Court's treatment of Booker's case may suggest something more. It turns out that Booker did not make a Sixth Amendment objection to his sentence in the district court. In fact, Booker's Sixth Amendment challenge first appeared in a supplemental brief to the Seventh Circuit, which he filed soon after the Supreme Court's decision in Blakely. The Government pointed this out in its petition for certiorari, see Pet. for Cert., 2004 WL 1638204, at *3-4, but, inexplicably, the Supreme Court did not address whether Booker's sentence was plain error. Yet the most reasonable reading of the Court's disposition of Booker's case suggests that the Court thought it was. After all, in Booker, the Supreme Court quite explicitly instructs reviewing courts to determine whether an appealing defendant made a Sixth Amendment argument in the district court and to review for plain error if he did not. See Booker, 125 S. Ct. at 769. We cannot fathom why the Court would not follow its own instruction, although it may be for the simple, and strange, reason that the Seventh Circuit declined to address the question of plain error because the Government apparently did not raise the issue. See United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004).
For another defendant, however, the Sixth Circuit in Milan determines he "did not receive a sentence in excess of the maximum sentence authorized by the facts he admitted in his guilty plea," and thus "is not entitled to resentencing on the grounds that his sentence violates the Sixth Amendment." The court then drops a footnote to indicate that some other defendants may still be "entitled to remand even though their sentences are consistent with the Sixth Amendment," but the Court does not engage in the sort of harmless error analysis that Booker seems to countenance and that the 10th Circuit applied in a similar case to order resentencing in US v. Labastida-Segura last week (detailed here).
More House hearing testimony and links
I have received, and now provide for download below, the written testimony of Professor Frank Bowman and Assistant AG Christopher Wray. In addition, I have been alerted that a live webcast of the on-going hearings can be accessed at this link here. And TalkLeft here has some broad commentary here about matters that policy-makers should be considering in a broad review of the federal sentencing system.
Reports on 9th Circuit's Ameline
The Ninth Circuit's decision yesterday in Ameline (basics here, commentary here) gets traditional media coverage through this LA Times article and gets blog coverage in this Ninth Circuit Blog post. Noting that Ameline is in line with the Fourth Circuit's Hughes decision, the LA Times article calls it "particularly noteworthy for the 9th Circuit, generally considered the most liberal federal appeals court in the nation, to be on the same side as the 4th Circuit, widely viewed as the most conservative of the nation's federal appellate courts." And Steven Kalar at the Ninth Circuit Blog sums up Ameline this way:
In general, Ameline is everything the defense could hope for in the Ninth. It is a great case to throw at Probation, when they refuse to include 3553(a) factors in the PSR. It will also be a great case for judges who are stuck in the guideline rut. Finally, use Ameline with the USAO to argue that it should bargain outside of the guideline range.