February 10, 2005
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.