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.
A viewer's guide to Thursday's House hearing
I do not believe the Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" to be conducted Thursday morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will be webcast. Consequently, I suppose this post is really more of "reader's guide" than a "viewer's guide," since those of us outside the Beltway will only be able to read all the action once a transcript is made available. Nevertheless, it still seems valuable here to provide a preview of what we might expect.
As detailed before, the scheduled witnesses are Professor Frank Bowman, USSC Chair Ricardo Hinojosa, former Associate Deputy AG Daniel Collins, and Assistant AG Christopher Wray. Here are a few quick thoughts concerning each witness:
Professor Frank Bowman: TalkLeft here is warning "Beware of Bowman and his proposed fix," but I do not expect Frank to push hard for so-called topless guidelines. Frank put forth his "Bowman fix" as only a short-term remedy to try to avoid immediate post-Blakely chaos, but that ship has essentially already sailed. Notably, at the November USSC hearings and in (pre-Booker) academic writings, Frank has been advocating a form of simplified Blakely-ized guidelines as a long-term solution to Blakely issues.
USSC Chair Ricardo Hinojosa: From the prepared testimony already made public here on the USSC website, we know what US Sentencing Commission Chair Judge Ricardo Hinojosa plans to say. I found especially interesting in that testimony the assertion that the USSC "firmly believes that sentencing courts should give substantial weight to the Federal Sentencing Guidelines in determining the appropriate sentence to impose, and that Booker should be read as requiring such weight." Recall that Judge Cassell has used the term "heavy weight" in his Wilson opinions, and we can all ponder how much lighter "substantial" is than "heavy." (The post-Booker sentencing data in Judge Hinojosa's testimony, briefly noted here, merits its own future post.)
Daniel Collins: Now in private practice, former Associate AG Collins played a central role in the development of legislative restrictions on departure authority found in the Feeney Amendment to the PROTECT Act. In this testimony on behalf of DOJ two years ago to this same subcommittee, Collins urged broad legislation which would "prohibit departures on any ground that the Sentencing Commission has not affirmatively specified as a permissible ground for a downward departure." That statement suggests Collins is not a big fan of judicial sentencing discretion, but it remains to be seen what he has to say now that he is no longer speaking on behalf of DOJ.
Assistant AG Christopher Wray: At the November USSC hearings, Wray "described" but did not officially endorse the Bowman proposal if Blakely were held applicable to the guidelines (testimony here, analysis here). But that was before DOJ got the remedial outcome it essentially advocated from the Supreme Court in Booker. And since sentences seem to be hovering around the guidelines post-Booker, I would expect Wray's testimony might echo some themes in Judge Hinojosa's testimony. DOJ is an apparent fan of the guidelines having "heavy weight" and it may be content to adopt a "go slow" approach for now. But, as with the Collins' testimony, I will be particularly eager to see the specifics of what Wray now has to say on behalf of DOJ.
There is, perhaps unsurprisingly, a bit of a prosecutorial bias in this group: everyone other than USSC Chair Hinojosa is a current or former prosecutor. Nevertheless, I still expect we will get a rich set of views expressed at the hearing, and I plan to post more written testimony and any reports from persons in attendance when available.
February 9, 2005
The 8th Circuit speaks (strangely) on reasonableness
In a late entry on another busy Wednesday, the Eighth Circuit in US v. Killgo, No. 03-3407 (8th Cir. Feb. 9, 2005) (available here), had occasion to address the new Booker appellate review standard of reasonableness. But due to the procedural context and the court's avoidance of a core Booker/Blakely issue, the Eighth Circuit's discussion of reasonableness makes this review standard seem ever more opaque.
Critically, the Killgo court reviews the defendant's sentence for reasonableness even though the court refused to address the defendant's Blakely claim because of an appeal waiver (citing, inter alia, a similar post-Booker ruling by the Eleventh Circuit in Rubbo). The Eighth Circuit explains in a footnote, "While Killgo's appeal waiver is sufficient to bar his Sixth Amendment claim, we recognize that it did not waive the application of a constitutional standard of review on appeal."
Turning then to the substance of the defendant's claims about the district court's "relevant conduct" determinations, the Eighth Circuit explains:
We review the sentence imposed for unreasonableness, judging it with regard to the factors in 18 U.S.C. § 3553(a). Killgo's appeal relates directly to § 3553(a)(4)(A); that is, he essentially claims that the reasonableness of his sentence is directly linked to the district court's misapplication of a relevant Guideline. Stated another way, Killgo's argument on appeal is that the district court erred in determining relevant conduct under the Guidelines thus rendering his sentence of thirty-three months' imprisonment unreasonable. [FN 5]
[FN 5] Relevant conduct also relates to the "history and characteristics of the defendant," § 3553(a)(1), as well as the need to "protect the public from further crimes of the defendant," § 3553(a)(2)(C). Using relevant conduct in sentencing a defendant also aids in the "need to avoid unwarranted sentence disparities." 18 U.S.C. § 3553(a)(6).
The Guidelines generally provide that specific offense characteristics, such as the calculation of fraud losses, are determined on the basis of "relevant conduct," not the acts underlying the offense of conviction. See U.S.S.G. § 1B1.3(a).... The district court's determination of Killgo's relevant conduct is entirely consistent with our holdings in similar cases. In this case, Killgo used Interjet as the common business front from which to solicit his victims. Each case was premised on Interjet securing a lease for a transport grade aircraft. Furthermore, Killgo executed substantially similar documents in setting up each separate fraudulent transaction. The four acts occurred within months of each other. In addition, Killgo operated the scheme with the same accomplice. We hold that Killgo's dealings are part of the same common scheme or plan. Accordingly, the district court properly considered the three dealings with Lineas Aereas Allegro, Southend Cargo, and Falcon Air as relevant conduct under § 1B1.3. Based on the relevant consideration, we cannot say that Killgo's thirty-three month sentence is unreasonable or that the district court erred.
Gearing up for Booker hearing week
As discussed here earlier this week, tomorrow the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines." I am hopong that some written testimony might be posted by the Committee at this official hearing page, although I will plan to post in this space any hearing testimony I receive.
Indeed, I have already received, and provided for downloading here, a brief letter to the Sub-Committee from the Ethics Officer Association and a similar letter from legal counsel to various corporate groups, and also the prepared testimony of US Sentencing Commission Chair Judge Ricardo H. Hinojosa.
UPDATE: The Subcommittee on Crime, Terrorism, and Homeland Security has posted this press release concerning tomorrow's hearing, and the USSC website now has as a pdf document Chair Hinojosa's prepared testimony here.
And speaking of the US Sentencing Commission, I was extremely pleased to see on the USSC website the full Public Hearing Agenda, the circulated list of Topics of Discussion, and even a very personal Sample Hearing Invitation in conjunction with the USSC's Public Hearing in DC next week.
There is so much worthy of comment in all these materials, I hope readers might share some general or particular comments concerning all of these Booker events on the near horizon.
UPDATE: An insightful reader has spotlighted to me that Chair Hinojosa's prepared testimony includes "interesting statistics on post-Booker sentencing: upward sentences 3x more likely than before Booker (thought numbers are so few that it many not mean anything) and downward/outside the range about the same as pre-Booker."
Working through the process that is due
The Ninth Circuit's latest work in Ameline (basics here) is notable for its plain error discussion, especially the closing statement that "it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime," slip op. at 17 (emphasis in original), and also the failure to substantively engage with the Rodriguez from the Eleventh Circuit and the raging plain-error circuit court battles. But the Ameline court's discussion of "basic procedural fairness" is even more remarkable, especially because the court drops a tantalizing footnote concerning burden of proof issues I have been discussing of late here and here and here.
In the course of discussing the factual dispute in Ameline over the amount of drugs in the offense, the Ninth Circuit speaks broadly about the need to "ensure fairness and integrity in the sentencing process," and it observes that "[a]lthough the PSR is essential to the sentencing process, there is nothing sacrosanct about the information contained in the report." The court in Ameline also clarifies that, even post-Booker, a defendant's factual objection to the PSR means the sentencing court "may not simply rely on the factual statements in the PSR:"
This conclusion follows from the interplay between Federal Rule of Criminal Procedure 32(i)(3)(B) and the rule we adopted in Howard that the party seeking to adjust the offense level bears the burden of proof. This conclusion also properly accommodates the due process concern that a defendant be sentenced only on the basis of reliable information. When a defendant makes a timely specific objection to the factual accuracy of an assertion in the PSR, Rule 32(i)(3)(B), even after Booker, requires the district court to resolve the factual dispute.
But, when it comes to the potentially critical issue of what burden of proof may apply to disputed facts post-Booker, the Ameline court has this somewhat confusing punt in footnote 7:
In Howard, we also held that factual disputes under the Sentencing Guidelines should be decided by a preponderance of the evidence. See Howard, 894 F.2d at 1090. We further have held that, in certain circumstances, the applicable burden of proof at sentencing may be clear and convincing evidence, see United States v. Johansson, 249 F.3d 848, 853-54 (9th Cir. 2001), or even reasonable doubt. See United States v. Thomas, 355 F.3d 1191, 1202 (9th Cir. 2004). Whether the Booker majority remedial opinion affects the standard of proof articulated in these cases is an issue we need not address at this time.
Relatedly, while the Ameline court has us all thinking about "basic procedural fairness" and also about how best to "ensure fairness and integrity in the sentencing process," I am happy to be able to share an important (and amusing) commentary I recently received from attorney Jim Felman. Entitled "The Need for Procedural Reform in Federal Criminal Cases" and available for download below, Jim uses a hypothetical conversation between a federal criminal defense attorney and a civil attorney to spotlight why he thinks the Federal Rules of Criminal Procedure applicable to sentencing proceedings "are in need of at least two specific reforms."
Interesting (and curious) district court application of Booker and Crosby
Just now appearing on-line is a case from earlier this week which is the first written case I have seen purporting to apply the Second Circuit's guidance from Crosby (basics here, commentary here). The decision by US District Judge John Keenan in US v. Ochoa-Suarez, 2005 WL 287400 (S.D.N.Y. Feb 07, 2005), is also noteworthy for its brief consideration of safety-value issues. Here is a selection from the court's (curious and sometimes seemingly inconsistent) ruling:
Although pre-Booker, the Court originally concluded that the defendant did qualify as a manager or supervisor under § 3B1.1 of the USSG, this finding does not pass muster under the holding in Booker, because there has been no finding beyond a reasonable doubt by a jury to this effect. Accordingly, the three-level enhancement of defendant's offense level, under the now advisory-only sentence guidelines, for role in the offense, is rejected and there is no three-level adjustment for "role in the offense."...
The decisions in Booker and Fanfan do not affect the application of the "safety valve" in this case. The section sets forth the five criteria the defendant must meet to qualify for "safety valve" treatment. Testimony at the Fatico hearing on December 2, 2004 disclosed she was a manager and supervisor in the criminal activity here for safety valve purposes and the criminal enterprise in which she was involved was a continuing one.... Moreover, a fair reading of the Government submissions discloses that she failed to make full and truthful disclosures at her proffer sessions....
Finally, the Government asks me to deny the three-level reduction in offense level because defendant has not "clearly demonstrated acceptance of responsibility for her offense." The application is denied. She may not have completely articulated her full involvement in the conspiracy at the proffer sessions, but she did plead guilty to the exact charge in the indictment and saved the Government the costs of a trial. The defendant is, after all, a first offender and 108 to 135 months is a substantial period of incarceration. In my view, this a "reasonable" range in this case.
In any event, both sides have a right to appeal my ruling and the sentence of 10 years that I impose today, the mandatory minimum.
The 9th Circuit uses Ameline to speak on plain error (and other issues)!
The Ninth Circuit has jumped into the plain error scrum (highlights here and here) through a new opinion in US v. Ameline, No. 02-30326 (9th Cir. Feb. 9, 2005) (available here). Here are some highlights:
In light of the Supreme Court's recent decision in United States v. Booker, 125 S. Ct. 738 (2005), we granted appellant Alfred Ameline's petition for rehearing to reconsider our decision in United States v. Ameline, 376 F.3d 967 (9th Cir. 2004)....
Our original opinion was consistent with Booker's holding that the Sixth Amendment as construed in Blakely applies to the Sentencing Guidelines. It was at odds, however, with the Court’s severability remedy that eliminated the mandatory nature of the Sentencing Guidelines. Applying Booker to the present case, we conclude that (1) the Court’s holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered; (2) because Ameline did not raise a Sixth Amendment argument at the time of sentencing we review for plain error; (3) Ameline's sentence violated the Sixth Amendment and constituted plain error; and (4) the error seriously affected the fairness of Ameline's proceedings. Accordingly, we vacate Ameline's sentence and remand for resentencing.
In addition, the Ameline panel also decided to use this case as a vehicle to discuss some post-Booker procedural issues as well.
To provide guidance to the district court in resentencing Ameline, we also address Ameline's challenge to the district court's ruling that he bore the burden of disproving the amount of methamphetamine that the Presentence Report ("PSR") attributed to him. In addressing this issue, we conclude that Booker did not relieve the district court of its obligation to determine the Sentencing Guidelines range for Ameline's offense of conviction. In determining the guideline range, the district court must still comply with the requirements of Federal Rule of Criminal Procedure 32 and the basic procedural rules that we have adopted to ensure fairness and integrity in the sentencing process. Although the district court is not bound by the Sentencing Guidelines range, basic procedural fairness, including the need for reliable information, remains critically important in the post-Booker sentencing regime.
The Sixth Circuit fun continues as it publishes Davis
Maintaining its status as the Circuit most fun to watch in the developing Booker battles, the Sixth Circuit today decided to "re-designate" its decision from three weeks ago in US v. Davis, 2005 WL 130154 (6th Cir. Jan 21, 2005) (available here) to add this notable footnote:
This decision was originally issued as an "unpublished decision" filed on January 21, 2005. The court has now designated the opinion as one recommended for full-text publication.
I previously discussed the Sixth Circuit's work in Davis here (along with the Ninth Circuit's Tanner decision, which has as detailed here also been changed). Though I suppose I should praise the Sixth Circuit for bring Davis into the published light, the opinion itself is still a bit opaque on the law.
The Davis case involves some plain error analysis layered on top of complicated ex post facto issues even before the Court turns to Booker matters. And once turning to Booker, the Davis decision now follows the Sixth Circuit's Oliver ruling on plain error and then drops this remarkable footnote:
One day after the panel in Oliver filed its opinion, a different panel of this Court filed United States v. Bruce, — F.3d —, 2005 WL 241254 (6th Cir. Feb. 3, 2005). To the extent Bruce conflicts with Oliver, we note that we must follow Oliver because it was decided first. See 6TH CIR. R. 206(c).
And as a final item of legal fun, Judge Cook felt compelled to add a concurrence which provides:
I write separately only to note that Booker does not forbid all judicial fact-finding in sentencing, as a reader of the majority’s opinion here might infer.... After Booker, of course, the guidelines are merely advisory. Thus, post-Booker, judges may enhance sentences based upon facts not found by the jury, provided they do not consider themselves required to do so. With this clarification, I concur.
Still more praise for Booker
As the folks inside the Beltway get started with hearings to examine Booker, I think it is worthwhile to spotlight again that so many folks outside the Beltway are praising the state of federal sentencing after Booker. As detailed in materials linked here and here and here and here and here, nearly 50 editorial pages and commentators have expressed support for Booker's dual (or should I say dueling) holdings.
Today we get more of the same from the Des Moines Register through this forceful editorial which is focused particularly on the post-Booker decision of Judge Pratt in Myers. In the words of the editorial:
Judges must be allowed to use their training and instincts based on real lives. If they are wrong, an appeals court is in place to correct decisions upon review. It is far better that judgments be made this way rather than by a congressionally appointed commission that establishes inflexible rules and renders judges little more than paper handlers.
Relatedly, noted (and often controversial) commentator John Lott, Jr. adds his voice to the debate in this interesting commentary entitled "Eliminating Sentencing Guidelines Would Make Penalties More Equal." Here's a snippet from his piece:
The Guidelines were originally set up in 1987 to ensure fairness and rational organization in criminal sentencing. But they have failed, instead increasing disparities and making an illogical hodgepodge of rules.... The Guidelines have created more sentencing disparity because they focus solely on just one of the penalties that criminals face: imprisonment.
February 8, 2005
Simon says offender characteristics now quite relevant to federal sentencing
I just noticed on-line a terrific district court Booker opinion from last week authored by Indiana US District Judge Philip Simon. The case is US v. Nellum, 2005 US Dist LEXIS 1568 (N.D. Ind. Feb. 3, 2005) (also available here), and in the interpretive battle over the weight to be given to the guidelines, Judge Simon says in Nellum that Judge Adelman in Ranum and Judge Pratt in Myers have the better approach.
The defendant in Nellum was a relatively small-time crack dealer who turned to a life of crime to support his crack habit. After carefully computing the defendant's guideline range, Judge Simon then turned to consider the 3553(a) factors. In so doing, Judge Simon concluded that the defendant's age, family ties, drug addiction, medical condition and past military service, all previously discouraged or prohibited factors, were now "very relevant." Considering these factors, along with the "very serious" nature of dealing crack, Judge Simon imposed a sentence of 108 months' imprisonment (which was nearly 5 years longer than the sentence sought by the defendant, but 5 years shorter than the guideline sentence urged by the prosecution).
Nellum merits praise and close examination for its thoughtful use of US Sentencing Commission recidivism data and its effectively analysis of the relevance of offender characterisitcs in the application of 3553(a). The decision also spotlights (while dodging) a fascinating jurisprudential issue raised by crack offense sentencing:
Nellum argued at sentencing that the disparity between the sentencing guidelines for crack versus powder cocaine (the infamous 100 to 1 ratio), see generally USSG §2D1.1(c), should be considered in crafting an appropriate sentence. Indeed, Nellum pointed this Court to a November 2004 report issued by the US Sentencing Commission in which it noted that in 2001 it "recommended that the crack cocaine threshold be raised ... replacing the 100 to 1 ratio with a 20 to 1 ratio." USSC, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Criminal Justice System is Achieving the Goals of Sentencing Reform, at 132. Congress did not act on that request. In the November 2004 report, the Commission again stated that "Revising the crack cocaine thresholds ... would dramatically improve the fairness of the federal sentencing guidelines." Id. As one court put it, "the Sentencing Commission with its ability to collect sentencing data, monitor crime rates, and conduct statistical analyses, is perfectly situated to evaluate deterrence arguments." US v. Wilson, 2005 WL 78552, at *8 (D. Utah Jan. 13, 2005). There can be no doubt that this issue is extremely controversial and one which this Court will no doubt face in future sentencings. However, the Court found that it need not address the 100-to-1 powder to crack cocaine ratio in crafting this sentence. Instead, the Court relied on the myriad of factors it was already required to take into consideration in arriving at Nellum's sentence.
Booker wisdom for the states from the Vera Institute
The Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publications entitled "Aggravated Sentencing: Blakely v. Washington — Practical Implications for State Systems" (discussed and linked here) and "Aggravated Sentencing: Blakely v. Washington — Legal Considerations for State Systems" (discussed and linked here).
Achieving a state trifecta, the Vera Institute now has produced "Beyond Blakely: Implications of the Booker Decision for State Sentencing Systems." Authored by Jon Wool, this terrific state-focused account of Booker can be accessed here. These opening paragraphs provide a fitting overview:
The Supreme Court's recent decision in United States v. Booker has transformed sentencing for federal judges, prosecutors, and defense attorneys. But what guidance does it offer state policymakers and practitioners? The short answer: not much.
The Booker decision addresses only a few of the many questions raised by the Court's earlier ruling in Blakely v. Washington, which directly and dramatically affected the sentencing systems in a number of states. For those in the states who are struggling with these questions, Booker's 118 pages and six opinions offer little clarity. Nonetheless, the Booker decision sheds some light on the Blakely rule and sharpens its implications for certain states' structured sentencing systems.
February 8, 2005 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Continuing capital commotion
Another relatively quiet Booker day provides some time to catch up on a few notable capital punishment stories.
- From Kansas, this article reports on the disparate legislative proposals being considered as a response to the state Supreme Court's ruling last year in Marsh (details here) that declared the state's death penalty procedures constitutionally problematic. (This story notes that the state Supreme Court has now refused to reconsider the Marsh ruling.)
- From Houston, this article provides the latest procedural developments in the pitched battle between federal prosecutors and US District Judge Vanessa Gilmore over how to try capital defendant Tyrone Williams in a federal alien smuggling case.
- From Virginia, this article in the New York Times from this past Sunday provides a remarkable account of how and why Daryl Atkins, the defendant in the case in which the Supreme Court ruled that it was unconstitutional to execute the mentally retarded, may now be scoring high enough on IQ tests to permit his execution to go forward.
In examining these and other recent capital stories lately, I continue to be intrigued by the huge amount of time, money and energy that gets devoted to death penalty issues which really only impact a handful of criminal cases. As I noted here concerning the remarkable Michael Ross case from Connecticut, every instance of capital case commotion provides a new object lesson in the symbolic significance of the death penalty.
Historical perspective on Booker
Fordham Law Professor Ian Weinstein was kind enough to send me, and kind enough to allow me to post, a paper he put together for an upcoming NYC Bar Association panel on Booker. The paper, which can be downloaded below, is entitled "The Revenge of Mullaney v. Wilbur: U.S. v. Booker and The Reassertion of Judicial Limits on Legislative Power to Define Crimes."
As the title suggests, Ian's piece places the story of Apprendi, Blakely, and Booker in some important historical context. In this respect, the piece is in the same vein as the article entitled The Roots and Realities of Blakely which I wrote for the Winter 2005 issue of the Criminal Justice Magazine. But Ian's fresh piece not only connects the Court's recent jurisprudence to "the sentencing revolution" (which is my main focus), but also to a number of important broader criminal justice transformations. The piece provides an enriching perspective on both the sentencing doctrines and sentencing policies which surround Booker.
Curious about the composition of the federal judiciary
A guest post here at the ACSBlog by Leesa Klepper, former Senate Judiciary Committee Counsel to Senator Patrick Leahy, has me thinking about the make-up of the current federal judiciary that now wields new sentencing power in the wake of Booker. The Klepper post is focused on the composition of the federal appellate courts (and she asserts that "more than three-quarters of the federal appellate courts in our country are dominated by Republican appointees"). But I am even more interested in a break-down of federal district court judges by appointing presidents, since district judges clearly have the most new sentencing power as a result of Booker.
My hunch is that, despite the presence of many Clinton appointees on the federal district courts, the majority — perhaps the vast majority — of district judges who regularly do sentencings are appointees of either President Reagan or of one of the Presidents Bush. If that hunch is accurate — and I highly encourage readers in the know to share any data they may have — the distrust of judges expressed by Republicans in Congress (such as Representative James Sensenbrenner and Tom Feeney) is especially curious. You would think that Republicans would general trust the exercise of sentencing discretion by a judiciary comprised of judges appointed mostly by their own party.
The 6th Circuit on Booker and § 924 Firearm-Type Provision
With thanks to Appellate Law & Practice for the tip, I am proud to spotlight that the Sixth Circuit has now issued a Booker opinion which can be a source of pride (in contrast to its plain error mess noted here and here). Today in US v. Harris, Nos. 03-6207/6255 (6th Cir. Feb. 8, 2005) (available here), the Sixth Circuit thoughtfully builds off Booker to conclude "that the § 924 Firearm-Type Provision mandatory minimum is not binding on a sentencing court unless the type of firearm involved is charged in the indictment and proved to a jury beyond a reasonable doubt."
The analysis in the Sixth Circuit's Harris case intricately explores the interaction of fact-finding within the now advisory guidelines and for still binding statutes such as § 924 which both raise minimums and maximums. Here is the summary of the Court's detailed analysis:
We conclude that the tradition of treating firearm type as an element, see Castillo, 536 U.S. at 126-27,126-27, the sharply higher penalties involved, see id. at 131, and the serious constitutional problems that would result from a contrary conclusion, see DeBartolo, 485 U.S. at 575, are together sufficient to overcome the presumption, based on the structure of the statute, that § 924(c)(1)(B) is intended to set out sentencing factors rather than elements of separate crimes.
Having determined that the firearm types set out in the § 924 Firearm-Type Provision are elements of separate crimes, rather than sentencing factors, we must conclude that Booker does require that § 924 Firearm-Type Provision enhancements be charged in the indictment and proved to a jury beyond a reasonable doubt. We emphasize that our holding on this issue is narrow. We do not address the general constitutionality of mandatory-minimum sentences imposed through judicial fact-finding, a practice explicitly approved by the Supreme Court prior to Booker when traditional sentencing factors, rather than elements, are involved. See Harris, 536 U.S. at 568; see also United States v. Koch, 383 F.3d 436, 438-39 (6th Cir. 2004) (en banc), overruled on other grounds by Booker, 125 S. Ct. 738. Instead, we hold only that in light of Supreme Court precedent distinguishing those aspects of crimes traditionally considered elements from those traditionally considered sentencing factors, the § 924 Firearm-Type Provision mandatory minimum is not binding on a sentencing court unless the type of firearm involved is either admitted by the defendant or charged in the indictment and proved to a jury beyond a reasonable doubt. [FN 5]
[FN 5] We emphasize that, in light of [the Supreme Court's decision in] Harris, this holding does not apply to the mandatory-minimum sentences relating to firearm brandishing and discharge in § 924(c)(1)(A)(ii)-(iii) (the "§ 924 Brandishing/Discharge Provisions"), which continue to bind sentencing judges.
UPDATE: At this post from Appellate Law & Practice, you can now find more background and commentary on the Sixth Circuit's important Harris decision.
Booker news and notes
A few Booker items have caught my eye at the end of a relatively quiet day for Booker in the courthouse:
- This fascinating article from the Texas Lawyer provides a Lone Star view of the Booker with an emphasis on legal uncertainties and the workload for the Fifth Circuit. I touched on workload issues in a recent post on Booker burdens, and I was intrigued by this quote from the Fifth Circuit's Chief Judge Carolyn Dineen King:
"We're going to have a meeting of all of the judges in about a week and try to get a coordinated approach to it all," King says of Booker appeals. "It is a monumental task."
- As detailed here and here, the Sixth Circuit would have benefitted from a coordinated approach to plain error, and Peter Henning of the White Collar Crime Prof Blog notes here that some of the disparate inter-circuit approaches to plain error have been in white-collar cases.
- With House and Sentencing Commission hearings on the way, groups and commentators are sharing advice concerning legislative reactions to Booker. This AP article reports on the ABA's "go slow" resolution (previously discussed here), and this newspaper commentary provides an insightful set of recommendations in urging Congress to pass "bipartisan legislation to make our federal justice system fairer, cheaper and more effective at reducing crime."
February 7, 2005
The impact of Booker on American Indians
It is often not realized or closely examined (except sometimes in the pages of the Federal Sentencing Reporter) that America Indians are sentenced in federal courts for crimes committed on reservations. This interesting article from Indian Country Today discusses the impact Booker could have in the sentencing of American Indians. It also closes with this intriguing observation:
In traditional American Indian cultures there has been a movement to considered punishment by means of a tribal group, whether elders or people chosen to sit as a sentencing group. Traditionalists on some reservations in the Great Plains have brought the idea to state and federal authorities that many crimes should be handled by the tribal court or a select group of traditional people. The argument is that federal sentencing guidelines and non-Indian juries have an adverse effect on American Indian defendants.
More great defense insights and commentary
As evidenced by posts here and here and my due process musings here, the Booker result has the defense bar buzzing, and defenders are generating amazing insights about the post-Booker world. More proof arrived in my in-box today in the form of two amazing draft articles I received from federal public defenders, both of which are slated for publication in a forthcoming issue of The Champion.
With extra thanks to The Champion for allowing me to post these drafts, below I have for downloading first a piece by Anne Blanchard and Kristen Gartman Rogers entitled "Presumptively Unreasonable: Using the Sentencing Commission's Words to Attack the Advisory Guidelines." This piece echoes some of my ideas here about the post-Booker importance of the USSC's 15-year report.
A second amazing piece comes from Steven Kalar, Jane McClellan, and Jon Sands, and it is entitled "A Booker Advisory: Into the Breyer Patch." In addition to that amazing title, the piece begins with quotes from REM and Yogi Berra. That should be enough to prompt downloading by everyone.
Last but not least, after noticing that frequent commentor Alex Eisenmann was regularly posting in the comments a number of important and ground-breaking comments, I encouraged Alex to assemble all his comments in one document. Alex was kind enough to oblige, and I now also provide the document he created here for your reading pleasure.
Hearings and more hearings
As noted previously here, this Thursday the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines." As you can now see from this page, the four persons scheduled to testify are Professor Frank Bowman, former Associate Deputy AG Daniel Collins, USSC Chair Ricardo Hinojosa, and Assistant AG Christopher Wray.
If time permits, I hope to provide a "viewer guide" to these House hearings in the coming days (as well as links to any written testimony if and when it is available). For now, I can just wonder out loud about how many of these witnesses may advocate the Bowman fix and whether they will advocate it as a permanent or only a temporary fix.
Meanwhile, as detailed here, the US Sentencing Commission now has up its official notice concerning the public meeting and hearings it will be conducting next week. As the notice explains, the "purpose of the public hearings, entitled 'U.S. v. Booker/Fanfan and the Impact on Federal Sentencing', is for the Commission to gather testimony from invited witnesses on the present and potential future effect of the Supreme Court’s decision on the federal criminal justice community."
I am fairly sure we will be hearing more from the USSC in the days ahead about who it will be inviting to testify. I am hoping to be able to attend all of the USSC festivities in person next week (which means, of course, that I will be blathering on about all that transpires in this space).
Unpublished summary Booker remands in the 9th Circuit
The Ninth Circuit has today, through a set of unpublished dispositions that can be accessed here, vacated and remanded for resentencing four cases based on Booker. Rather than give full cites for all these ("not for publication") cases, here are just the short-hand names of the defendants with links: Reynolds, Seibert, Stewart, and McCoun.
Because these dispositions do not provide any procedural history (indeed, McCoun is a single sentence), it is hard to surmise whether these dispositions include a de facto judgment about the plain error issues that are now roiling other circuits. (Background here and here.)
Of course, by being unpublished, these Ninth Circuit dispositions "may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3," and thus their meaning is not formally important as a matter of precedent. But, as we all try to make sense of the post-Booker realities, these summary remands seem noteworthy. (Also noteworthy, it seems from the top of this page that the Ninth Circuit might have done something today in the Tanner case previously discussed here, but the link is not working for me.)
Another unpublished Booker doozy from the Sixth Circuit
With thanks to a reader for the tip and to Appellate Law & Practice for the story, I see that the Sixth Circuit is continuing a disconcerting trend of deciding consequential post-Booker cases through unpublished opinions. (Prior examples of this trend are detailed here and here.) Unpublished today we get US v. Hines, Nos. 03-6622 (6th Cir. Feb. 7, 2005) (available here), which vacates and remands a sentence based on Booker.
In Hines, the Sixth Circuit panel states that "[a]lthough the district court's factual findings [on the amount of drugs and use of weapons] are supported by the record, Hines is nonetheless entitled to re-sentencing under Booker." The Court then proceeds through a cursory plain error analysis and relies heavily on the Fourth Circuit's Hughes decision to find the plain error standard met. The Court finally asserts:
Remand is the only appropriate way, in this case, to allow the parties to argue for the exercise of the district court's discretion as authorized by Booker.... As appellate courts should review — and not determine — the decisions of the district court, we must vacate and remand for re-sentencing.
This ruling is stunning for a number of reasons, most particularly that the Hines panel does not even mention, let alone address, the two major (conflicting) rulings on plain error coming from the Sixth Circuit last week, Oliver and Bruce. Over at Appellate Law & Policy this post provides some more background on Hines (and this prior post has more on the Oliver and Bruce saga).
Though I am not inclined to tell others how to do their jobs, it strikes me that the scattered plain error decision-making might prompt the Sixth Circuit to order, sua sponte, en banc consideration of these cases. As noted in this post, the Eighth Circuit is taking the en banc route (as detailed here) to address plain error. Going en banc would allow all the Sixth Circuit judges to consider collective the important perspective issue that, as I suggested here, lies at the heart of divergent approaches to plain error.
More on the Tennessee waltz toward a Blakely fix
In this post, I noted a newspaper account of recommendations approved this past Friday by the Tennessee state task force created to assess and repond to Blakely (background here and here). Over the weekend, attorney David Raybin, whom the press has dubbed "the chief architect of the proposal approved Friday," sent me additional materials concerning the work of the Tennessee Blakely task force. As David explained in an e-mail, a "formal report will be forthcoming, but the attached preliminary review addresses the various drafts and the compromise that was acceptable to the various sides."
Though the attached document starts with the newspaper article posted earlier, David was quick to note the article did not fully capture the compromise which had produced a final recommendation for, in David's word, an "advisory system that begins sentencing determinations with a statutory base not unlike the post-Booker federal system but without the math." The attached document also includes an article by Vanderbilt University Professor Nancy King, and David stressed that "Professor King and Professor Don Hall (also of Vanderbilt) and Professor Neil Cohen of the University of Tennessee worked very hard to keep us on track and come up with a proposal that should pass constitutional muster."
February 6, 2005
Super Booker Sunday
So it was a pretty good — not great, but pretty good — Super Bowl, and now I can focus on the fact that it is less than 9 days until pitchers and catchers report for Spring Training, and only 5 weeks until this bracket is filled in to start March Madness. But it was a great day for Booker commentary, as reflected in this summary of today's commentary:
- More about beyond a reasonable doubt at sentencing
- The Booker battles: questions of perspective
- Ex post facto headaches from any legislative response to Booker
- More notable unpublished circuit Booker dispositions
In addition, in a post yesterday entitled Summarizing the USSC 15-year report (and recent posts) I also provide a topical summary of all the major Booker developments and commentary of the tail end of the past week.
More notable unpublished circuit Booker dispositions
In this post, I expressed surprise and concern over a few consequential "unpublished" circuit court Booker dispositions, and now I see more of the same showing up on-line.
From the Second Circuit we get US v. Fleischer, 2005 WL 272113 (2d Cir. Feb. 03, 2005), which upholds a pre-Booker appeal waiver despite the changes brought by Booker. The Second Circuit Blog here laments the summary disposition in Fleischer, contending the issue "deserves much fuller analysis and treatment" and suggesting "this summary order is clearly inconsistent with at least the spirit, if not the letter, of the Circuit's decision in Crosby."
From the Third Circuit we get US v. Rodriguez, 2005 WL 256346 (3d Cir. Feb. 03, 2005), which in an Anders setting gives short shrift to the idea that Booker might impact the defendant's sentence. To affirm the defendant's sentence, the Third Circuit has to rely on an admission by the defendant and then fails to address the potential impact of the guidelines' new advisory status. The court simply states, after noting the sentencing court "granted a downward Guidelines departure of 4 levels and imposed a sentence at the low end of the resulting offense level range," that Rodriguez' sentence "was both legal and reasonable."
Ex post facto headaches from any legislative response to Booker
Who can resist blogging during the Super Bowl halftime (with Paul McCartney in the background and no wardrobe malfunctions in sight)? In honor of Super Booker Sunday, I can now finish up a post I started this morning about ex post football, ... err, I mean ex post facto.
In my testimony in November to the US Sentencing Commission, I expressed concern that any legislative response to Booker "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices." At the time, and still today, my concerns center around ex post facto litigation headaches if "the Bowman fix" (aka topless guidelines) is enacted and seeks to be immediately applied as a response to Booker.
After speaking to many smart folks about the ex post facto implications of the Bowman fix, I concluded that no one is really sure how to tackle the issue. Consequently, I asked my smart research assistant to do a memo for me on the topic. Proving how smart I am to hire such smart help, my RA's memo, which can be downloaded below, does a masterful job sorting through these issues. In addition to spotlighting many key ex post facto issues, the memo serves as an important reminder that any effort to apply a post-Booker legislative fix immediately risks producing another wave of confusing litigation.
The Booker battles: questions of perspective
Though it is not quite the Eagles versus the Pats, teams of circuit and district judges are assembling and tussling in fascinating jurisprudential battles over Booker. In the circuit courts, the battle is over plain error and who may can secure resentening after Booker. In the district courts, the battle is over how much weight to give the (advisory) guidelines in sentencings after Booker. Though neither battle can be summarized in a few sentences (both now comprise hundreds of pages of opinions), it is valuable to note how the battles both reflect questions of perspective. Let me explain:
The Booker Battle over plain error: process versus outcomes
In the decisions of Hughes from the Fourth Circuit and Oliver from the Sixth Circuit and Crosby from the Second Circuit, we see circuits courts particularly concerned with the process through which sentences are imposed. Since courts conducting sentencings before Booker did not use — really could not have possibly used — the unexpected new 3553(a)-centered process established for federal sentencing by Booker, these courts are inclined to require or permit post-Booker resentencings.
In contrast, Bruce from the Sixth Circuit and especially Rodriguez from the Eleventh Circuit show circuit courts concerned particularly with sentencing outcomes. Since post-Booker sentencing outcomes can — and perhaps often will for some classes of defendants — mirror pre-Booker outcomes, these courts are inclined to neither require nor permit post-Booker resentencings.
This battle is especially intriguing since both the plain error standard and the Booker decision mixes procedure and substance. For that reason, I am especially drawn to the Second Circuit's middle-ground approach in Crosby which calls for limited remands to allow district courts to reconsider whether it should conduct full resentencings. But then again, I am also moved by the Eleventh Circuit's funny observation in Rodriguez that the Second Circuit has called for "a do-over to decide if there should be a do-over." (For more on do-overs, see this long ago post on Do-overs? and a more recent post here further discussing the Eleventh Circuit's pre-Booker discussion of do-overs.)
The Booker Battle over guidelines' weight: system-wide versus case-specific
In the views of Judge Cassell in Wilson I and Wilson II and Judge Kopf in Wanning, the work of the US Sentencing Commission in the guidelines fully reflects the 3553(a) purposes of punishment and judges should not readily seize upon those purposes to justify a "variance" from the now-advisory guidelines. In other words, for Judges Cassell and Kopf, the system-wide view on purposes provided by the USSC should predominate in individual cases and thus the guidelines should still be given "heavy weight."
But Judge Adelman in Ranum and Judge Pratt in Myers identify in various ways how they think the guidelines fail to fully reflect the 3553(a) purposes of punishment. Consequently, they clearly believe a case-specific view on purposes should predominate in individual cases and thus the guidelines should be one of the many important considerations that now come to bear at sentencing.
To play a legal John Madden, I will predict a winner in this battle: I think the case-specific perspective better fits and fulfills the language and structure of 3553(a) and the spirit and terms of Booker. Of course, on this issue I am a bit biased: most of my early academic writings stressed why federal judges should have broad discretion even within mandatory federal guidelines to be attentive to case-specific realities that system-wide rules cannot fully capture. See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000); A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999).
More about beyond a reasonable doubt at sentencing
When speaking to lawyers in Wisconsin last week (background here and here), there was a lot of talk about the idea 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. (Some of my previous posts on this topic are here and here.)
Steve Sady at the Ninth Circuit Blog has additional coverage of this important topic in this post, which discusses and links to this detailed and thoughtful letter brief elaborating the argument for BRD as the applicable proof standard. In addition, the Ninth Circuit Blog also has this extended post discussing in detail Judge Batallion's ruling in Huerta-Rodriguez which provides a due process account for continuing to apply a BRD standard post-Booker to federal sentencing (basics here).
In addition to noting these materials, I want to spotlight some additional points which, I believe, strongly support the notion that, post-Booker, district judges at least have discretion to utilize the beyond a reasonable doubt standard when resolving disputed facts at federal sentencing:
1. The Supreme Court case which established the reasonable doubt standard as derived from the Fifth Amendment's Due Process Clause, In re Winship, 397 U.S. 358 (1970), addressed proof standards in a setting (juvenile proceedings) in which the Sixth Amendment's jury trial right is not applicable. In other words, Winship was about assuring that judges apply the heighten proof standard in order to provide "concrete substance for the presumption of innocence -- that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." Id. at 363.
2. The merits majority in Booker seemed to go out of its way to limit the reach and meaning of US v. Watts, 519 US 148 (1997), a case which seems to countenance the preponderance standard at sentencing for punishment-enhancing facts. Here is how Justice Stevens in footnote 4 of the Booker merits majority describes the Court's work in Watts: "Watts ... presented a very narrow question regarding the interaction of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument. It is unsurprising that we failed to consider fully the issues presented to us...."
3. Neither Congress nor the US Sentencing Commission has expressly provided for preponderance to serve as the proof standard at federal sentencing. The Sentencing Reform Act does not speak to this issue at all. The guidelines in commentary to 6A1.3 state that "The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case." However, this guideline has not been officially re-examined since Jones, Apprendi, Blakely and Booker came on the scene, and the same commentary also stresses that, in each case, the "sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law."