February 26, 2005
A: "I'm going to Disneyland!"
Booker developments in the morning papers
This Newsday article provides an interesting report on the Third Circuit's approach to Booker pipeline cases:
Without much public debate, the 3rd U.S. Circuit Court of Appeals has quietly begun tossing out the sentences of certain felons whose punishments were calculated under mandatory federal sentencing guidelines that had been in place nearly two decades before being declared unconstitutional in January.... The court ... has been sending letters to each criminal defendant with a case currently on the 3rd Circuit docket. The letters ask defendants to write brief letters explaining whether they plan to challenge their sentences, too. "That's highly unusual," Assistant U.S. Attorney Linda Hoffa said. "But how often do you have landmark cases like this?"
As detailed here, there is a rumor going around that the Third Circuit adopted its unique approach to Booker after the Circuit judges polled the district judges on what to do.
Meanwhile, at the district court level, the papers have anecdotal report on more tough post-Booker sentences. This article from Maryland reports on 22-year (with-the-guidelines) sentence in a cocaine case. And this article from North Dakota reports on 22-year sentence in a meth case, though the report suggests this sentence may have been a "variance." The case appears to be another example, previously discussed here, of a judge granting a variance but still imposing a significant prison term.
February 25, 2005
11th Circuit does a Booker remand
Though not quite as big as the news from the Seventh Circuit on plain error (basics here), I see from Appellate Law and Practice here that the Eleventh Circuit today did remand a case on Booker grounds. Interestingly, in US v. Shelton, No. 04-12602 (11th Cir. Feb. 25, 2005) (available here), there was not Sixth Amendment violation, but the Eleventh Circuit remands because it still finds "Shelton has established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime."
7th Circuit speaks on plain error (and follows Crosby)
I just returned from the terrific AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (at which I learned a lot and from which hope to share some new insights over the weekend). And I returned to find that the Seventh Circuit, per Judge Posner, has weighed in on plain error and has, with a slight tweak, followed the lead of the Second Circuit in Crosby.
The opinion in US v. Paladino, No. 03-2296 (7th Cir. Feb. 25, 2005) (available here), is a wonderful and remarkable effort, and it includes two dissents from the denial of rehearing en banc. As Judge Posner explains in the last paragraph, the Paladino opinion "was circulated to the entire court before issuance [and all] but two members of the court in regular active service voted not to hear the case en banc."
There are many amazing passages in Judge Posner's opinion and in the en banc dissents of Judges Ripple and Kanne. I hope to comment on Paladino and on the deepening plain error three-way split in the circuits this weekend, but for now every Booker watcher can do their own read (and add comments below) of this latest Posner contribution to our new sentencing world.
Keeping Booker busy
I am likely to be off-line for the rest of the day as I participate in the AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (details here). Fortunately, for Booker addicts, the federal circuits have already provided plenty of reading. Also, I see that a webcast of the Washington Legal Foundation's Panel Discussion entitled "The Future of Federal Sentencing: 'Reasonable' Judicial Discretion or Congressional Intervention?," which took place yesterday, can now be accessed here.
Sixth Circuit addresses retroactivity
Continuing to provide a daily supply of Booker rulings, the Sixth Circuit today in Humphress v. US, No. 03-5951 (6th Cir. Feb 25, 2005) (available here), issued its first opinion on retroactivity. The Sixth Circuit in Humphress holds that Booker "does not apply retroactively to cases already final on direct review." As has been common in many such rulings, the Sixth Circuit relies heavily on the death penalty case Schriro, which concluded Ring was not retroactive. "Schriro's reasoning applies with equal force to Booker," says the Sixth Circuit (although the court does not directly confront the fact that Schriro did not deal with the burden of proof issues, as detailed here).
The Sixth Circuit also had another (unpublished) plain error ruling today with US v. Cook, No. 02-1405 (6th Cir. Feb. 25, 2005) (available here). As is the Sixth Circuit's recent pattern, in Cook the court finds plain error and orders a remand for resentencing based on Booker.
How should variances that still result in prison terms be coded and considered?
I have recently highlighted here and here challenges for the US Sentencing Commission in trackng and coding variances and departures effectively. In addition, as discussed here, not all variances are the same of should be coded and considered equally since large variances pose a much greater risk of disparity than small ones. Indeed, in reading newspaper accounts of some federal sentencings, I detect a pattern in which judges may be granting variances but still imposing significant prison terms on first time offenders. This story of the sentencing of a Hawaiian state representative and this story of the sentencing of two Los Alamos lab workers seems to fit this mold. It will be interesting to see whether and how the USSC will be able to capture in its variance data that significant prison terms were still imposed in a number of variance cases.
Intriguing safety value Booker issue from the Sixth Circuit
Blogger Sixth Circuit at Appellate Law & Practice notes here an intriguing unpublished opinion from the Sixth Circuit, US v. Ross, No. 02-6435 (6th Cir. Feb. 24, 2005) (available here), in which the government agreed to a Booker remand after the defendant contested a judge's fact-finding which made the defendant ineligible for a safety-valve reduction. Blogger Sixth Circuit wonders why the government would make this concession, speculating "that the Government would have a strong argument for no Sixth Amendment violation under Harris and McMillan."
I think the government's concession is curious, but not for the reason spotlighted by Appellate Law & Practice. The facts which supported Ross' 10-year mandatory minimum on a crack offense were admitted by Ross, so this case is not about fact-finding for a mandatory minimum. Rather, the case turned on whether the judge could find that violence or a firearm was associated with that crack offense so as to make Ross ineligible for a safety-valve reduction. But this fact-finding would seem technically to be about potential mitigating facts (the absence of violence or a firearm), not aggravating facts, so it would seem to be Blakely/Booker permissible. In the end, then, the case actually spotlights some of the sophistry that may surround distinguishing judicial fact-finding of aggravating facts and mitigating facts.
The 11th Circuit sticks with its plain error approach
A safe trip to LA and a hotel net connection allowed me to find out that the Eleventh Circuit today in US v. Duncan, No. 03-15315 (11th Cir. Feb. 24, 2005) (available here), reiterated its hard-line plain error approach to Booker claims. The bulk of the Duncan opinion just replays the court's plain error analysis in Rodriguez (basics here, commentary here), but the kicker in Duncan is that the district court's pre-Booker sentence incorporated so-called "acquitted conduct." The Eleventh Circuit says this does not change the analysis:
Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict. Thus, nothing in Booker erodes our binding precedent. Booker suggests that sentencing judges can continue to consider relevant acquitted conduct when applying the Guidelines in an advisory manner, "[f]or when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." Booker, 125 S. Ct. at 750. Here, applying Justice Breyer's opinion retroactively, we conclude that the jury verdict authorized life imprisonment. Therefore, we conclude that it was not error for the sentencing judge to find a fact that had been acquitted by the jury when determining Duncan's sentence.
The Duncan court also goes on to explan why it thinks the Eleventh Circuit has plain error right while the Fourth, Sixth, and Ninth Circuits have it wrong. The Duncan court also rejects the defendant's intriguing ex post/due process fair warning claims: "We readily conclude that Duncan had sufficient warning to satisfy the due process concerns articulated in Rogers v. Tennessee."
February 24, 2005
Off to the Coast
Just in time for the Oscars, I am off to LA to participate tomorrow in the AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (details here). Though blogging may be a bit lighter the next few days, there is no shortage of reading to catch up on. As I did previously here and here and here, below I have thematically organized and linked recent posts:
BOOKER CIRCUIT COURT DEVELOPMENTS
- More Booker wisdom from the 2d Circuit
- The Third Circuit speaks more fully on Booker (and Almendarez-Torres)
- Booker remands in the 8th and the 10th
- Lots more on Booker from the Sixth Circuit
- Two for Tuesday from the First Circuit
- Plain error Booker circuit review
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- A simple solution to the pipeline problem?
- Eager for more post-Booker data
- Important Booker rulings from district courts
- A fascinating 3d Circuit rumor
- The Blakely beat goes on in the states
SCOTUS DEVELOPMENTS AND COMMENTARY
- Will SCOTUS care to clean up the plain error mess?
- Criminal justice, constitutional law, federalism and hot button issues
- More thoughts on recent SCOTUS work
- SCOTUS speaks on racial segregation in prison
- More SCOTUS Booker GVRs
A simple solution to the pipeline problem?
The Second Circuit's powerful decision late yesterday in Williams explaining its Crosby approach to plain error (discussed here, now available on-line here), as well as the cert. petition in the Eleventh Circuit's Rodriguez decision (discussed here), spotlight dramatically the disparate circuit approaches to some of the pipeline cases. And considering that plain error is only one of the challenging pipeline issues facing the circuit courts, I have lately been thinking about whether there is some easier way to deal with all the pipeline cases.
Here is my latest thought. How about this blanket rule to be applied to all non-final cases at any stage of appellate review: if the original sentence was at the guidelines minimum, a strong (but rebuttable) presumption that resentencing is appropriate; if the original sentence was above the guidelines minimum, a solid (but rebuttable) presumption that resentencing is not needed?
In other words, forget about plain error, harmless error, Rule 28(j) letters, etc; let's just have, in the name of greater uniformity, one blanket rule for all non-final cases still in the system. If this is a good idea, could Congress or the USSC make it happen?
Eager for more post-Booker data
As highlighted in recent posts here and here and here (and as I stressed in my USSC testimony), the role and importance of the US Sentencing Commission in collecting and disseminating post-Booker data cannot be overstated. The data reported in USSC Chair Judge Hinojosa's testimony to the House Subcomittee was potent (and received notable media attention), but it is now already three weeks old. Though Judge Hinojosa updated the data at last week's USSC hearings, I am wondering when we will get another official and public report on post-Booker sentencing developments from the Commission.
I see from this USSC webpage that the Commission has a public hearing scheduled for April 12, which is (coincidentally?) the exact three-month anniversary of Booker. I hope we won't all have to wait until then for some more official data. I have heard rumors about the possibility of a "Booker fix" proposal coming from the Justice Department soon and also about possible Senate hearings. Both the executive and legislative branches would profit enormously from more updated post-Booker data ASAP from the USSC.
For more evidence on the power and importance of sentencing data, I am pleased to be able to provide for downloading below Professor Marc Miller's latest article promoting "sentencing information systems" to be published in the Columbia Law Review entitled "A Map of Sentencing and a Compass for Judges: Sentencing Information Systems, Transparency and the next Generation of Reform." As Marc explains in his article, "sentencing reform everywhere can be improved" if actors and institutions "make sentencing information and sentencing data publicly available and easily accessible."
More thoughts on recent SCOTUS work
The blogsphere has some interesting commentary on the criminal justice decisions of the Supreme Court this week. The double jeopardy case of Smith v. Massachusetts elicited this post from CrimLaw, and Eugene Volokh also discusses, as I mentioned here, the unusual (Booker-like) line-up of Justices in Smith in this post. And the prison racial segregation case Johnson v. California (basics here, commentary here) has caught Jack Balkin's attention as detailed in this post because of the Justices' varied approach to racial distinctions.
Important Booker rulings from district courts
With all the non-stop Booker action in the circuits, it is easy to overlook the important Booker work still being done by the federal district courts. I've not been able to track of dozens of district court habeas rulings, but I can quickly report on a few notable recent district court rulings on other issues (and previous coverage is here).
For example, Judge Cassell has covered more important post-Booker ground by thoughtfully explaining in US v. Duran, 2005 WL 395439 (D. Utah Feb. 17, 2005), why the guidelines must still be considered advisory in cases involving application of the "safety valve." Also quite thougthful is the work done by Judge Ellis in US v. Biheiri, 2005 WL 350585 (E.D. Va. Feb. 09, 2005), which has notable dicta on a range of post-Booker issues.
But the most notable and potentially consequential district court decision of late would seem to be US v. Greer, 2005 WL 396368 (M.D. Ga. Feb. 17, 2005), which speaks to the scope of the Almedarez-Torres prior conviction exception (here is a lot more background on this issue). In Greer, the court holds in a 924 case that a prior violent felony was not proved to a jury and could not be used to enhance a sentence. The Greer court reaches this conclusion because "[d]etermining the factual nature of a prior conviction is materially different from simply finding the existence of a prior conviction for recidivism purposes [and the] Court finds that the Sixth Amendment to the Constitution, as interpreted in Booker and Blakely, reserves this type of factfinding for jury determination."
Booker remands in the 8th and the 10th
Though not quite as thrilling as the Booker work yesterday of the Second Circuit in Williams (discussed here), the Third Circuit in Ordaz (discussed here), and the Sixth Circuit in a bunch of cases (discussed here), the Eighth and the Tenth Circuits have also been Booker active lately.
Given the Eighth Circuit's recent pattern of suspect Booker affirmances (discussed here), the court's remand on Booker grounds in US v. Selwyn, No. 04-2164 (8th Cir. Feb. 23, 2005) (available here), is quite noteworthy. It is unclear whether the defendant in Selwyn raised a precise Sixth Amendment claim at sentencing, but he did object to the PSR's calculation of drug quantities. In addressing Booker claims on appeal, the Eighth Circuit says "Selwyn objected to drug quantity findings, preserving this issue for appeal.... We therefore remand to the district court for resentencing [and] do not address Selwyn's additional claims beyond noting that they may be considered at the new sentencing proceeding."
The Tenth Circuit's unpublished rulings in US v. Arroyo-Berzoza, 2005 WL 408062 (10th Cir. Feb 22, 2005), is dated Tuesday but just came on-line. It serves as a confirmation of the circuit's important conclusion in Labastida-Segura (discussed here) that, even when there is no Sixth Amendment violation below (here because all relevant sentencing facts were admitted by Arroyo-Berzoza), the harmless error analysis suggested by Booker means a remand is still necessary when the district judge sentenced at the bottom of the applicable guideline range so that the district court can decide now in the first instance what to do now that the guidelines are advisory.
A fascinating 3d Circuit rumor
As detailed in posts here and here and here and here, the Third Circuit has apparently decided to handle Booker pipeline cases simply through remands for resentencing that explain that the Court believes Booker issues are "best determined by the District Court in the first instance." I have now heard a rumor that the Third Circuit's general practice of remanding all sentences after Booker was developed after the Circuit judges polled the district judges on what to do, and the district judges virtually unanimously requested that they get all of their pipeline sentences back for redetermination. If this rumor is true, it provides a fascinating example of what might be called inter-court comity, as well as another instance of how the Blakely/Booker fall-out has produced some unusual circuit court decision-making procedures (the Second Circuit's quasi en banc work in Crosby, as noted here, provides another such example).
The Blakely beat goes on in the states
For example, in Minnesota there were recently two Blakely remands, see State v. Crow, 2005 WL 406201 (Minn. App. Feb. 22, 2005); State v. Smith, 2005 WL 406313 (Minn. App. Feb. 22, 2005), while in Ohio there were two more rejections of Blakely claims, see State v. Gann, 2005 WL 406214, 2005-Ohio-678 (Ohio App. 12 Dist. Feb. 22, 2005); State v. Moore, 2005 WL 405706, 2004-Ohio-676 (Ohio App. 3 Dist. Feb 22, 2005). And the always active California now has more than 500(!) on-line appellate dispositions mentioning Blakely.
In addition, the New Jersey Supreme Court this coming Tuesday (March 1st) at 10:00 am is hearing a set of major Blakely cases. That argument can be followed via live webcast at this link. The New Jersey Commission To Review Criminal Sentencing has prepared a helpful informational report about the two cases NJ Blakely cases, Natale and Abdullah, which can be downloaded here:
I have previously detailed in posts here and here background on the engaging and dynamic story of Blakely in New Jersey, and I posted the first set of NJ Supreme Court briefs here. I have now received, and provide below, what I believe are the final set of briefs in these NJ Blakely cases:
February 23, 2005
Will SCOTUS care to clean up the plain error mess?
With the Chief Justice ailing and the Supreme Court plenty busy with other big ticket cases, I doubt the Court is eager to take on another guideline sentencing case. Nevertheless, as documented in my circuit-by-circuit review here, the plain error issue is big mess in the circuits, and today's Second Circuit decision in Williams (basics here) suggests a three-way split on this issue is here to stay.
Given especially the goal of sentencing uniformity, which the Booker remedial majority was purportedly seeking to serve, an awfully strong case can be made that SCOTUS needs to again step in quickly to clean up these remedy issues. Indeed, given that the government wants to take Ameline en banc in the Ninth Circuit (and indicated in its Ninth Circuit brief that it might seek to go en banc in the Fourth and Sixth Circuits, too), the Supreme Court ought to consider jumping in simply to prevent an enormous waste of litigant and judicial resources dickering over these issues.
The Supreme Court now has at least one ready vehicle for taking up these issues, because defense counsel for Vladimir Rodriguez, the defendant who got the short end of the Eleventh Circuit's plain error stick, have now filed for cert. The Rodriguez petition, which can be downloaded below, nicely summarizes where matters stand:
Barely one month after [Booker], the Circuits have fallen into a sharp threeway conflict .... The Third, Fourth, Sixth, and Ninth Circuits have followed a rule under which a sentence longer than the maximum Guidelines sentence justified by the facts found by the jury or admitted by the defendant almost always constitutes plain error requiring resentencing. The First and Eleventh Circuits have adopted a rule under which such sentences almost never constitute plain error. And the Second Circuit has adopted a third approach: remanding in every case to ask the district court to make the plain error determination. This conflict affects a massive number of cases, and concerns an important issue that is squarely and cleanly presented here.
More Booker wisdom from the 2d Circuit
Seeking to shed more light on the handling of pipeline cases, the Second Circuit has weighed in again, and again in an opinion by Judge Jon Newman, though US v. Williams, No. 04-2882 (2d Cir. Feb. 23, 2005) (available for download below). In Williams, Judge Newman purports to "amplify our reasons for the form of remand we have used in some pending cases with sentences that are erroneous in light of Booker." Here are some choice quotes:
In short, there is no need to apply the plain error doctrine in the sentencing context with precisely the same procedure that has been used in the context of review of errors occurring at trial, whether civil or criminal. Moreover, we note that the Supreme Court has never applied the Olano formulation of the plain error doctrine to ignore a judge’s sentencing error that affected substantial rights, nor required a court of appeals to do so....
To avoid the deficiencies of either a routine affirmance or a routine remand for resentencing, we ruled in Crosby that we would normally remand for determination by the sentencing judge of whether a materially different sentence would have been imposed. This disposition avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing.
Criminal justice, constitutional law, federalism and hot button issues
The Supreme Court's Johnson decision today (basics here) about racial segregation in prisons — as well as its cert. grant yesterday in Gonzales v. Oregon concerning federal challenges to Oregon's "Death With Dignity" law (law.com background here, blogsphere commentary here and here) — has me again noticing the frequent intersection this SCOTUS term of criminal justice, constitutional law, federalism and hot button issues. Of course, these intersections are obvious in the (already argued) medical marijuana case of Ashcroft v. Raich (lots of details here and here), and the (soon to be argued) prison RLUIPA case of Cutter v. Wilkinson (background here), the (soon to be decided?) juvenile death penalty case of Roper v. Simmons, and even some little known case called Blakely (see here and here for more on Blakely and federalism).
A decade ago, after Lopez, and even five years ago after Morrison, many commentators thought we might see the so-called "federalism revolution" come to criminal law. But, as Craig M. Bradley noted last year in Federalism and the Federal Criminal Law, 55 Hastings L.J. 573 (2004), "very few cases have been reversed based on Lopez or Morrison." Though the post-argument buzz was that Raich is unlikely to change this basic storyline, I am intrigued by the broader cross-cutting of jurisprudential principles in all of these cases.
(Fortunately, I have the benefit of lots of Ohio State colleagues to discuss these issues. As I noted here, Cutter is something of a law school civil war because OSU-affiliated lawyers are on both sides. And my colleague Marc Spindelman has been examining the Oregon assisted suicide case for some time, and his article "A Dissent from the Many Dissents from Attorney General Ashcroft's Interpretation of the Controlled Substances Act," 19 Issues in Law & Medicine 3 (2003) (available here), thoughtfully explores some of the federalism ideas in that case.)