February 19, 2005
Songs in the key of 3553
Thanks to a thoughtful soul (and reader), I am now a member of iPod nation. And after spending some time playing with my music library, I recalled that many folks (present company included) have taken to describing Booker in song. So, for those musically inclined, I offer the following Booker playlist (which readers are, of course, encouraged to supplement):
- The Who, Won't Get Fooled Again (song and lyrics cited in this post)
- Talking Heads, Once in a Lifetime (lyric cited in this post and linked article)
- Bob Dylan, Tangled Up in Blue (lyric cited in this post and linked article)
- REM, It's The End Of The World As We Know It (lyric in this article)
- Bob Dylan, All Along the Watchtower (lyric in this article)
- Lou Reed, Talk a Walk on the Wild Side (brilliant Blakely parody here)
- Dan Hicks, How Can I Miss You If You Won't Go Away (song referenced by US Attorney Robert McCampbell as detailed in this post)
More on departures and variances: not quite as easy as 123
In this recent post, I spotlighted the importance of a post-Booker protocol in which judges first (1) calculate an applicable guideline range, then (2) make traditional departure determinations, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on 3553(a). I also expressed concern that it would be dangerously easy for courts to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. (TalkLeft has an astute recent post, Booker, FanFan 1-2-3, commenting on these matters.)
A district court Booker decision that just came on-line, US v. Mullins, 2005 WL 372209 (WD Va., Feb. 16, 2005) (available here), confirms that some post-Booker decisions may not be as easy as 123. In Mullins, Chief US District Judge James Jones finds it "reasonable to sentence the defendant below the advisory sentencing guideline range" after his guilty plea to two firearm charges, but does so after suggesting, but not conclusively ruling on, the possibility of a departure:
The ground for the requested downward departure here is unmentioned in the Sentencing Guidelines, and thus under pre-Booker procedure, I would determine whether the fact that the conduct used to compute the guideline range is no longer criminal is sufficient to justify a departure. Whether consideration of guideline authorized departures in the post-Booker world is necessary is a question that remains to be answered. I need not decide that issue, however, since I find that in any event, a variance below the applicable guideline range is called for in this case.
There has been yet no authoritative formulation following Booker as to the weight to be given to the formerly mandatory sentencing guidelines. Regardless of the precise weight to be given to the Sentencing Guidelines, however, I find that evaluation of the statutory sentencing goals justifies a sentence below that of the guidelines. The applicable sentencing statute left untouched by Booker requires a sentencing court to impose a sentence not greater than necessary to comply with certain listed sentencing purposes, including "afford[ing] adequate deterrence to criminal conduct." 18 U.S.C.A. § 3553(a)(2)(B). In the present case, neither the defendant nor others can be deterred by a sentence based on the guideline range for possession of a semiautomatic assault rifle, since that conduct is no longer criminal. Instead, the more apt guidelines range should be based on the conduct that is still criminal — selling a firearm without the proper documentation. That offense has a base offense level of 12. USSG § 2K2.1(a)(7). Adding the stipulated increases and subtracting the reduction for acceptance of responsibility produces a total offense level of 21, which has a sentencing range of 37 to 46 months for Criminal History Category I.
Taking into account the guidelines as well as the sentencing goals of § 3553(a), I find that a reasonable sentence in this case is 40 months imprisonment. This sentence gives recognition to the guideline range while also applying an appropriate reduction because of the removal of criminality of the offense used to calculate that range.
Because of the understandable decision not to rule expressly on the departure issue, I think the Sentencing Commission will have to code the Mullins case as a "variance." However, both because a departure likely would have been appropriate and because Judge Jones linked the degree of his variance to the guidelines, this case hardly seems to be a "non-Guidelines" sentence. Mullins thus spotlights how hard it will be for the USSC to code and present effectively post-Booker data, even though as noted here everyone consider such data work to be among the USSC's most critical tasks now.
A federal capital trifecta!
A thoughtful reader was kind enough to send me a copy of a (long) decision addressing pre-trial issues in a federal capital case which was filed yesterday by Chief US District Judge Mark Bennett (ND Iowa) in US v. Johnson, No. CR 01-3046-MWB (N.D. Iowa Feb. 18, 2005). The first 95 pages of the opinion, according to my source, "has the virtue of being a cure for insomnia," but pages 96-118 merits everyone's attention because here Judge Bennett provides perhaps the first ever comprehensive explanation and justification for "trifurcation" in a federal death penalty case. You can download the whole opinion below.
Judge Bennett's analysis in Johnson is fascinating, and earns extra points in my book for its many cites to the copious law review literature on capital sentencing procedures. It also reaches this wonderfully nuanced conclusion:
[N]otwithstanding that § 848 [the federal capital sentencing statute] expressly provides for a "bifurcated" proceeding, and there is no constitutional requirement for proceedings in a different form, the court concludes that § 848(j) permits, and the circumstances in this case require, that the proceedings in the case be "trifurcated," as described above.
Given the remarkable efforts that the government has recently gone through to get the high-profile capital case in Houston tried exactly as they wish (some background here), it will be interesting to see if there might be an immediate appeal from this trifurcation order.
Some smaller circuit Booker dispositions
As I predicted here, we did get some late Friday Booker action from the circuit courts. But none of the Booker rulings coming on-line from last night (or the previous day) seem all that consequential, and thus I will do just a very quick summary of rulings from the Second, Third, Ninth and Tenth Circuits:
From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).
From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."
From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."
From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.
If I have missed some nuances in these cases or other recent circuit disposition, readers are highly encouraged to use the comments to fill out the Booker circuit story.
February 18, 2005
More on victims at sentencing
In this recent post, I talked through some of the questions I had about the role of crime victims at sentencing after this topic came up in a number of interesting ways during this week's US Sentencing Commission hearing (overall coverage linked here, specific highlights here and here). Driving the topic now at the federal level, as both Judge Cassell and victim advocate Collene (Thompson) Campbell highlighted for the USSC, is Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771).
Proving he is the hardest working man in law business, Judge Cassell followed up the Commission buzz and my own queries with a terrifically insightful letter to the USSC covering "Victim Access to Pre-Sentence Reports" and "Defining the Victim." Judge Cassell thoughtfully cc:d me on the letter and has allowed me to post it here:
And, excitingly, this developing dialogue prompted Mike Connelly of the Wisconsin Sentencing Commission to send me some information from his state about experiences with victims at sentencing. A brief but thoughtful document entitled "Victim Information in Wisconsin Courts, 2003 – 2004" is also available here for download. In addition, Mike shared his insight that some victims' organizations have been concerned at the lack of implementation of victims' rights provisions and have been looking at means to consolidate and improve data collection from local jurisdictions to state and national levels. (I like hearing I am not the only one who beats the drum for sentencing data.)
Giddy with anticipation...
I am back in (chilly) Ohio, and was pleased to discover upon my return that it has been a relatively calm Booker day, at least so far. But recalling that the last two Fridays brought a lot of late day Booker circuit action (examples from last week are here and here, from the prior week here and here), I suppose I should be prepared to get on-line late tonight to find the day has not in fact been all that quiet.
While getting prepared, I am already a bit giddy with anticipation for next week's possible jurisprudential fireworks. On the Booker front, with a long weekend to polish opinions, I suspect we might see next week some more notable lower federal court rulings. And, adding to the excitement, the SCOTUS folks are back in business with arguments scheduled next week, the expected announcement of some cert. grants, and the possibility of some more opinions. (Of course, I am watching for decisions in Roper v. Simmons, the juvenile death penalty case, or Shepard v. US, the criminal history case.)
Beyond court action, this calender here details a number of interesting Booker events taking place next week. And today I can add to the list a Washington Legal Foundation Panel Discussion entitled "The Future of Federal Sentencing: 'Reasonable' Judicial Discretion or Congressional Intervention?" taking place on Thursday, Feb. 24 at 9am in Washington DC. More details about the event can be found here, and I am already looking forward to watching the webcast.
Heading home after a great DC week
Providing the flip-side of this post summarizing earlier developments, as I get ready to head home after an exciting DC week, I have set out below links to recent developments and commentary. I hope to be back on-line by late Friday afternoon, though the following provides lots of reading in the meantime:
USSC HEARING HIGHLIGHTS AND COMMENTARY
- Highlights from the USSC hearing transcripts
- Departures, variances and defense advocacy
- Topical highlights from Day 2 of the USSC hearings
- The importance of, and another great example of, district court Booker explanations
- The USSC hearings continue...
- Pondering a victim's role in sentencing
- A few highlights from Day 1 of the USSC hearings
BOOKER CIRCUIT COURT RULINGS AND COMMENTARY
- Time to put out an APB for the 5th Circuit?
- Sorting the pipeline cases
- 11th Circuit speaks on retroactivity
- Another impressive Sixth Circuit Booker episode
- Booker developments in the Second Circuit
- In today's great episode of how the Sixth Circuit turns...
- Sorting through the Circuit circus
Highlights from the USSC hearing transcripts
The US Sentencing Commission, to its great credit, has not only the written testimony from its hearing this week linked here, but also now has up transcripts with all the live testimony. The transcript from Tuesday afternoon is here, from Wednesday morning is here. (And while I am giving out credit, a wise reader noted that USSC Chair Hinojosa and Judge Sim Lake used the term "vary" in their documentation memo (discussed here) the week after Blakely. Thus, they deserve credit along with Judge Cassell for coining the term "variance" to describe post-Booker non-guideline sentences.)
The USSC hearing transcripts are very long — a total of nearly 300 pages! — but the Q&A after each panel really provides a rich addition to the written testimony and also reveals what some of the Commissioners are thinking through. In addition, there are 13 must-read pages from all the transcripts, appearing at the very end (pp. 137-150 of the second transcript) in the testimony of Robert McCampbell, who is the US Attorney for the Western District of Oklahoma and chairs the AG's Advisory Sub-Committee on Sentencing for DOJ.
Though McCampbell's written testimony largely tracked the written testimony of Chris Wray for DOJ at the House hearing, McCampbell made a number of distinct (and extraordinarily insightful) points in his oral presentation. In addition, through the Q&A with the Commissioners, McCampbell shed a lot of light on DOJ's biggest concerns as the post-Booker world unfolds. This weekend I hope to do some additional commentary, based on this testimony, on what we might soon expect to see from DOJ. In the meantime, go read those 13 pages, which McCampbell starts with this highlight:
When I read those two [Booker] opinions back to back, I have to say I was reminded of the old country-western song, "How Can I Miss You if You Won't Go Away?"
February 18, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Time to put out an APB for the 5th Circuit?
Though a few smaller circuits, specifically the First and DC Circuits, have not yet given us any notably Booker rulings, the total Booker silence from the Fifth Circuit seems particularly noteworthy. We are now more than a full five weeks since Booker was handed down, and every other circuit with a sizeable caseload has issued at least one major and some minor Booker rulings. (The ever exciting Sixth Circuit already has handed down more than a dozen notable Booker rulings.)
The quietness of the Fifth Circuit is especially interesting given that (1) last summer the Circuit very quickly addressed Blakely's applicability to the federal system and ruled in Pineiro less than three weeks after Blakely that the federal guidelines were not affected, (2) the Circuit disposed of nearly 200 appeals raising Blakely issues in the 6 months between Pineiro and Booker, and (3) the Circuit has a huge appellate and district court sentencing caseload (second only to the Ninth Circuit's); indeed, in Pineiro the Fifth Circuit explained that it had to rule quickly on Blakely because of the "unremitting press of sentencing appeals."
I have not heard any official word of the Fifth Circuit planning for en banc consideration of Booker issues, but perhaps some form of official or unofficial collective action by the court is slowing it down. Given the fact the circuit faces on average more about 100 appeals per month, and also given the likelihood that appeals increased after Blakely, there must be an enormous backload of cases piling up while the Fifth Circuit tries to find its post-Booker voice.
Capital notes around the blogsphere
For those seeking a brief Booker break, check out TalkLeft's two notable pieces on the death penalty, with this post on continuing problems in Illinois' death penalty system and this post questioning the guilt of the defendant executed on Thursday in Texas. And the PRACDL Blog provides here the legal basics of the hotly litigated federal capital trial in a high-profile alien smuggling case in Houston. Also, the Death Penalty Information Center has at its website a number of interesting new items, including this item about the growing elderly population on death rows.
February 17, 2005
Sorting the pipeline cases
The Christian Science Monitor has this article discussing a range of Booker fall-out issues, and gives special attention to the challenges courts are facing sorting out all the cases in the appellate pipeline. A similar well-done article from the National Law Journal is available here at law.com.
Additional news on this front comes from the Third Circuit Blog, which here reports that the Third Circuit "has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less." The post also reasonably suggests that the Third Circuit will be "using these letters as the primary means of screening cases for remand under Booker." A thoughtful reader was kind enough to pass along one of these letters, which can be downloaded below.
I am not a journalist, but I did sort of play one on a panel today
As Howard Bashman noted here, my DC afternoon involved participating on a panel addressing "The Effects of New Technologies on Covering the Court." Terrifically moderated by Pete Williams, my co-panelists Joan Biskupic, Lincoln Caplan and Dahlia Lithwick had a lot of interesting and thought-provoking comments about how the internet and blogs have impacted the coverage of the Supreme Court and legal issues more generally. Howard's ears should have been burning, since his role as SCOTUS' "38th law clerk" was mentioned. The discussion was mostly Booker-free, which was a refreshing change, and the evening was capped by a big dinner at the Supreme Court and a stirring speech by Justice Kennedy. Heady stuff for a law geek used to just rambling on-line in my pajamas.
11th Circuit speaks on retroactivity
I have been off-line playing the DC tourist most of the day and now I am off to participate in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court (discussed previously here). But as I dash out I see that from Appellate Law & Practice here that the 11th Circuit has ruled per curiam in Varela v. US, No. 04-11725 (11th Cir. Feb. 17, 2005) (available here) that Blakely and Booker are not retroactively applicable to cases on collateral review. I hope to comment on this case, and other DC news and notes, later tonight.
UPDATE: The work of the Eleventh Circuit in Varela is both unsurprising and uninspiring. As have most district courts in the wake of Blakely and Booker, the Varela court simply parrots parts of the Supreme Court's ruling in Schriro concerning Ring's non-retroactivity to declare that Blakely and Booker are not retroactively applicable to cases on collateral review. Unlike the Seventh Circuit's more thorough and thoughtful effort in McReynolds (details here), the Eleventh Circuit in Varela does not grapple with or even acknowledge that Schriro only concerned judge/jury issues and did not consider the possible impact of key burden of proof issues on retroactivity.
Another impressive Sixth Circuit Booker episode
I joked here that the Sixth Circuit's Booker work has a soap-opera quality, but today's installment of the saga at least suggests the judges in the circuit are all starting to work from basically the same script. Today's thoughtful opinion comes from Judge Karen Nelson Moore in US v. McDaniel, 03-1940 (6th Cir. Feb. 17, 2005) (available here), and in the end it remands on Booker grounds for resentencing while suggesting some developing harmony over how the circuit is dealing with plain error.
The Sixth Circuit's work in McDaniel, like its work yesterday in Barnett, merits a close read for anyone working through plain error issues. In addition, the McDaniel opinion has a lot of interesting dicta about the handling of pipeline issues, the application of Blakely/Booker to restitution issues, and a number of other matters.
UPDATE: Appellate Law & Practice picks up the soap opera theme with a great post entitled As the Sixth Circuit Booker World Turns. This post includes additional commentary on McDaniel as well as a brief discussion of the Sixth Circuit's unpublished disposition in US v. Fusse, No. 02-6112 (6th Cir, Feb. 17, 2005) (available here), which itself briefly deals with plain error on the way to granting a Booker remand.
Departures, variances and defense advocacy
In emphasizing how important it is for district judges to fully explain and document their post-Booker sentencing decisions, as discussed here, many Commissioners and witnesses at the USSC hearings (basics here) expressed the view that judges at sentencing must now (1) calculate an applicable guideline range, and then (2) make traditional departure determinations under the guidelines, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on the 3553(a) factors.
I think district judges should carefully follow this protocol not only because it is suggested by Booker (and mandated by the Second Circuit in Crosby), but also because only if judges follow this protocol will we get a precise and complete understanding of Booker's impact on federal sentencing practices. Moreover, this methodology also should help keep some teeth in 5K1.1 substantial assistance departures (which, as noted here, is a big concern for the Justice Department).
And yet, I suspect it is going to be dangerously easy for courts and counsel to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. I fear particularly in cases of "discouraged" considerations such as prior good works or family circumstances, judges and counsel will not be inclined to go through the hard doctrinal work of deciding whether a case is sufficiently exceptional to justify a departure and will principally focus on variance arguments based on the 3553(a) factors.
For defense counsel, I think there will be significant strategic issues in decided whether and how to develop departure and variance arguments. Though it might seem sensible to always first pitch for a departure, and then seek a variance as a fall-back position, counsel might risk losing credibility or placing emphasis on less helpful factors by putting greater focus on a departure claim than a variance claim. Also, it will be interesting to see, in the development of reasonableness review, whether departures get as much (or possibly more) appellate scrutiny as variances.
While defense counsel contemplate these matters in particular cases, they can can and should draw on collected wisdom of two decades of mitigating claims developed in the guideline system. Helpfully, attorney Michael Levine has long been assembling this wisdom in a regularly updated mega-resource that, pre-Booker, had been entitled "88 Easy Departures." Michael was kind enough to send my way his post-Booker update of this document which is now, tellingly, entitled "108 Easy Mitigating Factors." This documents, which can be downloaded below, provides advise to defense counsel and effectively marshalls in a topic fashion "cases granting, affirming, or suggesting mitigating factors."
February 17, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack
Booker developments in the Second Circuit
The Second Circuit Blog here is reporting that both the SDNY and EDNY US Attorney's Offices "are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker [except] apparently [in] cases involving plea agreements with appellate waivers." According to the post, the "Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant."
This is interesting news in light of some dicta in a Second Circuit Booker ruling today in US v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005) (available here). The holding of Sharpley is relatively straightforward, as it concludes that "because Sharpley was sentenced at the statutory mandatory minimum and the government has not requested resentencing, this is the rare case where use of a mandatory Guidelines scheme is harmless error even under" Booker and Crosby. And the court in passing ducked the appeal waiver issue stating "we need not decide whether Sharpley's waiver of his appeal rights, or such waivers generally, preclude any consideration of sentencing issues arising under Blakely or Booker."
The Sharpley decision also has some very interesting dicta on an issue previously spotlighted here on the blog. As explained here, there is an argument that Booker's failure to discuss 18 U.S.C. § 3553(b)(2) might mean that the guidelines are still mandatory for child crimes and sexual offenses. (Interestingly, Daniel Collins in his testimony at the USSC hearing today seemed to endorse this claim.) Sharpley drops a footnote addressing this issue:
Booker excises 18 U.S.C. § 3553(b)(1) from the Sentencing Reform Act, which makes the Guidelines generally binding on courts, but does not excise 18 U.S.C. § 3553(b)(2), which makes the Guidelines binding in sentencing for convictions for certain child crimes and sexual offenses.... [But] we see no unique feature of Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines sentences for other crimes. For this reason, we suspect that the Supreme Court’s failure to excise the entirety of Section 3553(b) was simply an oversight. Nonetheless, because any error in using a mandatory Guidelines scheme was harmless here, we reserve this issue for a case where it is necessary for decision and the parties have had a full opportunity to develop arguments on both sides.
February 16, 2005
Topical highlights from Day 2 of the USSC hearings
Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings. Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.
1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data. But a number of Commissioners astutely asked about how the data ought to be parsed. Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.
2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons). This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead. Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review. Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.
3. The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry. More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.
February 16, 2005 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
In today's great episode of how the Sixth Circuit turns...
If Court TV ever decides to create a legal soap opera, the plain error developments in the Sixth Circuit as it sorts through Booker cases would make a great story line. As in a great soap opera, we get a new episode with a new twist each day; today's installment comes in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (available here). Joyfully, this episode of the soap opera is a legal treat to watch, unlike a few prior episodes which made me cringe a bit. (Readers not fully engaged by the following long account of Barnett are still encouraged to ruminate in the comments about which actors ought to play which justices and judges in a Booker-inspired soap opera.)
Barnett is wonderful for many reasons, most notably because, in a split 2-1 vote, the Sixth Circuit carefully explains its remand for resentencing due to Booker even through the court holds, based on the prior conviction exception, "that there was no Sixth Amendment violation in the present case." Writing for the majority, Judge Martin explains that, because "Barnett did not challenge his sentence on [the ground that the guidelines were mandatory] or any other ground before the district court[,] we review the district court's decision for plain error." Moving swiftly to the third (prejudice) prong of plain error, Judge Martin thoughtfully explains why this "is an appropriate case in which to presume prejudice under the Supreme Court's decision in Olano:"
Instead of speculating as to the district court's intentions in the pre-Booker world, and trying to apply those intentions to predict the same court's sentence under the post-Booker scheme, we are convinced that the most prudent course of action in this case is to presume prejudice given the distinct possibility that the district court would have imposed a lower sentence under the new post-Booker framework and the onerous burden he would face in attempting to establish that the sentencing court would have imposed such a sentence.
This is not to discount the possibility, however, that in other cases the evidence in the record will be sufficient to rebut the presumption of prejudice.
In this thoughtful discussion and also in finding the fourth prejudice prong satisfied, the Barnett court draws significantly from the Fourth Circuit's work in Hughes and the Second Circuit's work in Crosby. The court also concludes by noting that, "because we have concluded that the district court committed plain error in this case, that error cannot constitute 'harmless error.'"
Judge Gwin, an Ohio district judge sitting by designation, concurs to thoughtfully explain why he believes that, in addition "to the majority's reasons offered for remand, two additional considerations warrant remand." His opinion is a great read, and includes an interesting discussion of the appropriateness of remand "in light of one of the underlying purposes of the plain error doctrine: the economy of judicial resources." Among other astute points, Judge Gwin notes that in many plain error precedents "appellate courts declined to remand, because to retry a case would be to expend a great amount of resources [but] where a re-sentencing is at issue, the costs are far less." Drawing on his own experiences, Judge Gwin says "[h]aving presided over hundreds, if not thousands, of sentencings, I believe the time devoted to post-Booker re-sentencing would be small."
Chief Judge Boggs is not convinced, and he adds a number of additional rich insights to the discussion. Here is his summary of his dissent on the plain error issue, which emphasizes that the district judge sentenced Barnett to the middle rather than the bottom of the calculated guideline range:
I agree with the court's conclusion that the district court's use of the pre-Booker sentencing rubric was plainly erroneous in light of present law, but I do not believe Barnett has shown the error prejudiced his sentencing. First, as a factual matter, I believe the record indicates the district court felt the sentence was fair and would therefore give the same sentence post-Booker. Second, as a matter of law, I believe the court errs by concluding that we should reverse when the record is silent as to prejudice.
The importance of, and another great example of, district court Booker explanations
One huge theme that developed at the USSC hearings this week (links here) concerned how critically important it is for district judges to fully explain and document their sentencing decisions (and provide this information to the USSC). On this point, Judge Cassell again stressed the always show your work point, and the Commissioners and other witnesses repeatedly emphasized that effective assessment of the post-Booker world would depend heavily on how well district courts document and justify their decisions. (Indeed, some astutely suggested that Congress would be more troubled by reports that judges were flouting their responsibility to carefully consider the guidelines than by any well-reasoned sentencing outcome.)
Confirming why it is so valuable to have such explanations is a decision from North Dakota Chief Judge Daniel Hovland in US v. Peach, 2005 WL 352636 (D.N.D., Feb. 15, 2005). In a truly peachy opinion, Chief Judge Hovland provides an up-to-date account of the jurisprudential debates over Booker and even quotes USSC Chair Hinojosa's data report from his House testimony to spotlight that "federal district courts are sentencing pursuant to the Sentencing Guidelines in the overwhelming majority of cases."
Adopting language from Judge Hinojosa's testimony, Chief Judge Hovland explains why he thinks that the "proper methodology for sentencing in the post-Booker environment is that federal district courts should give the Sentencing Guidelines substantial weight." And then Chief Judge Hovland goes on, in the case at hand, to thoughtfully explain how he has "carefully considered the factors enumerated in 3553(a)" and "considered the nature and circumstances of the offense as well as the history and characteristics of the Defendant." He then imposes a 100-month sentence, which was at the bottom of the applicable guideline range, as punishment for a life-threatening drive-by shooting by a defendant who apparently had a long criminal record.
In addition to spotlighting and praising another thoughtful district court Booker decision, I stressed the case's facts because it confirms my hypothesis here that the guidelines will likely be closely followed for violent crimes committed by repeat offender and variances are likely to arise mostly in non-violent crimes committed by first offenders. This instict led me to stress in my USSC testimony the importance of having post-Booker analyses especially attentive to the distinction between first-time, non-violent offenders and repeat, violent offenders.
USSC hearings continue...
Another big day at the US Sentencing Commission, with 11 witnesses with a variety of guideline experiences and perspectives scheduled to testify. A lot of today's witnesses' testimony is already linked to this agenda, and I hope to report on highlights later today. Coverage of yesterday's hearings can be found here and here.
UPDATE: And after a loooooong morning, the USSC hearings finished up this afternoon with a lot of important ground covered and key issues spotlighted. I will have a series of coming posts about the substantive issues, but I can start the post-mortem by highlighting two evolutions in the developing post-Booker nomenclature: (1) Judge Cassell's term "variance" to describe non-guideline and non-departure sentences seems to be gaining adherents, and (2) the Bowman fix may become known as the Collins fix now that Professor Bowman has officially abandon the idea, but former Associate Deputy AG Daniel Collins continues to promote it.