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.)
The Third Circuit speaks more fully on Booker (and Almendarez-Torres)
As I noted in my recent circuit round-up, the Third Circuit has not directly considered plain error issues but has established a pattern of Booker remands (examples here and here and here). Today, in US v. Ordaz, No. 04-1671 (3d Cir. Feb. 23, 2005) (available here), the Court provides its fullest discussion of Booker issues to date, though it does not make the status of plain error any more clear.
Specifically, in Ordaz, the Third Circuit continues its seemingly odd practice of simply remanding, without any plain error discussion, for resentencing in light of Booker (which, I suppose, is better than the Eighth Circuit's recent practice, discussed here, of simply affirming sentences in light of Booker). The Ordaz case has an added twist because the defendant was complaining about both offense-related guideline enhancements and prior conviction findings, and the Ordaz court had to address the prior conviction claim because it impacted the available statutory maximum sentences. Here are some key passages from the Ordaz court's work:
With respect to Ordaz's challenge to the District Court's determination regarding drug weight and the enhancements (other than for prior convictions), the issue is best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker.
We turn to Ordaz's challenge to the enhancement for prior convictions [which impact his maximum statutory sentence].... Ordaz argues that the fact of prior convictions should have been submitted to the jury.... Ordaz argues that because of the decision in Blakely, "it is clear that Almendarez-Torres cannot stand."
We do not gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries. Nonetheless, as an inferior federal court we have the responsibility to follow directly applicable Supreme Court decisions.
The holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds otherwise. Thus, because we are bound by Almendarez-Torres, we hold that the District Court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, notwithstanding that the sentences were based, in part, on facts found by a judge rather than a jury.
SCOTUS speaks on racial segregation in prison
Lyle Denniston at SCOTUSblog has here the key highlights of today's Supreme Court ruling in Johnson v. California, No. 03-636 (S. Ct. Feb. 23, 2005) (syllabus here), which addresses the constitutionality of the California Department of Corrections' unwritten policy of racially segregating prisoners as they enter a new correctional facility. The Court holds that strict scrutiny is the applicable standard and then remands.
Though the Johnson decision will be of interest mostly to folks concerned with corrections and/or equal protection doctrine, a quick skim reveals notable dicta in all the Johnson opinions. Especially catching my eye is Justice O'Connor's statement for the majority that the CDC's rule must be subject to strict scrutiny or else the Court "would undermine our 'unceasing efforts to eradicate racial prejudice from our criminal justice system.' McCleskey v. Kemp, 481 U.S. 279, 309 (1987)." (I trust my students will appreciate the irony of citing to and quoting from McClesky for this proposition.)
Lots more on Booker from the Sixth Circuit
A day without a Booker opinion from the Sixth Circuit is almost like a day without sunshine. Though yesterday was cloudy, the sun is shining brightly today with a lot of interesting Booker developments. Here are the highlights:
Second, in US v. Hazelwood, No. 03-6232 (6th Cir. Feb. 23, 2005) (available here), the court orders resentencing after finding an error in the calculation of the defendant's guideline range. The Hazelwood court explains that "regardless of whether the Guidelines are mandatory or merely advisory, district courts are required by statute to consult them, and ... a district court's misinterpretation of the Guidelines effectively means that it has not properly consulted the Guidelines."
Third, in the unpublished ruling of US v. Gonzales, No. 03-4297 (6th Cir. Feb. 22, 2005) (available here), the court provides this one paragraph explanation of for ordering a Booker remand (which is provides a stark contrast to the Eighth Circuit's work in the comparable Little Dog discussed here):
The sentence in this case was based on an offense level of 20 calculated from the jury verdict plus a 14-level "career criminal" sentence enhancement based on the two prior convictions. Under Booker and Fanfan, prior convictions may be used as upward adjustments without violating the Sixth Amendment prohibition on adjustments based on judicial fact finding. Booker, 125 S. Ct. at 756; accord Oliver, 2005 WL 233779 (6th Cir. Feb. 2, 2005). Even so, Booker and Fanfan establish that the Guidelines are now advisory as to all sentences. Since the mandatory element of the Guidelines has been removed, leaving the sentence to the reasonable discretion of the District Court, Judge Dowd may no longer approve of the 22-year sentence which he was required to impose in this case. This inference is particularly strong here, where he sentenced the defendant at the bottom of the Guideline range. It is unclear what sentence he might impose if not bound by the career criminal provisions of the Guidelines.
Finally, in US v. May, No. 04-4314 (6th Cir. Feb. 23, 2005) (available here), Booker does not even get mentioned as the court affirms a guidelines sentence in which the defendant appealed district court's failure to downward depart on a claim of sentence entrapment. Given the reasoning on the just mentioned Gonzales case, the Booker-free May affirmance might be questioned (although perhaps counsel in May failed to make a Booker claim on appeal).
Another questionable 8th Circuit affirmance
Though the Eighth Circuit has an en banc hearing scheduled for next month to address plain error (details here), the court continues to affirm a number of sentences imposed pre-Booker in ways that are, in my view, quite puzzling and do not seem fully in step instructions set out in Justice Breyer's last paragraph in Booker. Prior curious affirmances came in Lussier (discussed here) and in Killgo (discussed here), and the latest example is in US v. Little Dog, No. 04-1834 (8th Cir. Feb. 22, 2005) (available here).
Because the defendant in Little Dog apparently sought to raise and brief a Blakely/Booker claim for the first time on appeal, I would think the Booker claim would be subject to plain error analysis. But the Eighth Circuit does not address plain error in any way in Little Dog, nor does the court directly address the defendant's assertion that the district court "would have sentenced him differently if the Guidelines were not mandatory," or review the defendant's 30-year sentence for reasonableness. (Recall that the Eighth Circuit in Killgo suggested it should still conduct a review for reasonableness even if it finds no Sixth Amendment error.)
Rather, approaching the case almost in a pre-Booker manner, the Little Dog court first notes that enhancements based on criminal history "need to be established by proof beyond a reasonable doubt," and then cites an oblique statement from the district court concerning the prospect of a downward departure for the defendant. The court then concludes by asserting: "We find no discord between the district court's decision and Booker."
A 5th Circuit Booker sighting (or citing)
Last week I put out this APB for the Fifth Circuit, and a reader has now pointed me to what I believe is the first mention of Booker from the Fifth Circuit. Here is the full text of the per curiam order in US v. Barrera-Saucedo, 04-20943 (5th Cir. Feb. 22, 2005) (available here):
IT IS ORDERED that appellant’s motion to expedite the appeal is granted.
IT IS FURTHER ORDERED that appellant’s motion to vacate and remand in light of USA v. Booker is granted.
I do not have any details about the case, and thus without more explanation from the 5th Circuit it is hard to tell if this is a consequential ruling. It seems, at least for now, that the 5th is continuing to exercise its right to remain silent on Booker.
February 22, 2005
Plain error Booker circuit review
With the First Circuit joining the plain error fun with it decision today in Antonakopoulos (basics here), I think we now officially have at least half of the circuits officially weighing in concerning the application of plain error to pipeline cases in which the defendant did not raise a Blakely/Booker issue at sentencing. Though these rulings cannot be easily summarized, I will try in very short space to provide a run down of where plain error stands, circuit-by-circuit:
1st: Antonakopoulos provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.
2nd: Crosby provides for remands for reconsideration so district court can speak to prejudice.
3rd: No direct consideration of issue but a distinct pattern of remands.
4th: Hughes provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants.
6th: Oliver (which now rules the roost) provides for a more liberal plain error standard which seems likely to be satisfied by most defendants.
8th: Silent, but an en banc consideration is in the works.
9th: Ameline provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants. (Government's en banc motion pending.)
10th: Silent, but an en banc consideration is in the works.
11th: Rodriguez provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.
I am doing this mostly from memory, so I may have missed something that I trust commentors will fix. Also, I am certain that this summary review glosses over many nuances in all the holdings.
A Booker musing
If you are like me (or like Article III Groupie), you have perhaps always wondered what federal judges do on the weekend. (Of course, we already know what cows do on the weekend: they go to the moooooovies (hat tip to a toddler comedian I know).)
Now I know that at least one federal judge spends time thinking about federal sentencing because US District Judge Richard Kopf (of Wanning fame) was kind enough to send me a copy of what he calls "A Short Essay on Booker as a Thought Experiment for District Judges" which is dated this past Sunday. And I have set up this essay, which can be downloaded below, with a bit of whimsy because it ends with a whimsical footnote. But, before it gets to that footnote, it provides some interesting Booker food-for-thought.
Two for Tuesday from the First Circuit
As I suspected here, it appears that at least one Circuit took advantage of the long weekend to polish Booker opinions. Specifically, the First Circuit today issued Booker rulings in US v. Antonakopoulos, 03-1384 (1st Cir. Feb. 22, 2005) (available here), and US v. Sahlin, 04-1324 (1st Cir. Feb. 22, 2005) (available here).
Antonakopoulos is the big one, as the court begins by noting the decision sets forth "our standards for review of unpreserved claims of sentencing errors in the aftermath" of Booker:
To summarize our position at the outset, we intend to apply, in accordance with Justice Breyer's admonition, conventional plain-error doctrine where a Booker error exists but has not been preserved. The Booker error is that the defendant's Guidelines sentence was imposed under a mandatory system. The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system. A mandatory minimum sentence imposed as required by a statute based on facts found by a jury or admitted by a defendant is not a candidate for Booker error. The first two Olano requirements — that an error exists and that it is plain at the time of appeal — are satisfied whenever the district court treated the Guidelines as mandatory at the time of sentencing. But to meet the other two requirements — that this error affected defendant's substantial rights and would impair confidence in the justice of the proceedings — we think that ordinarily the defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new "advisory Guidelines" Booker regime.... We engage in case by case review and we reject certain automatic reversal rules.
Sahlin also merits attention, since it purports to "consider the effect of the Supreme Court's decision in Booker in cases involving guilty pleas." In that context, the First Circuit rejects "Sahlin's claim that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by Booker."
More SCOTUS Booker GVRs
The Supreme Court is back in action today. Though we did not get either of the sentencing opinions I am eagerly awaiting (background here), we did get a bunch of Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker). As detailed in this list of orders, there were more than 30 Booker-inspired GVRs today.
Of course, the (newly renovated) SCOTUSblog is the place to go for all the Supreme Court action. Among the High Court's work today is a 5-4 decision on a double jeopardy claim in Smith v. Massachusetts (syllabus here), which produced unusual coalitions of Justices (and different coalitions than in Blakely, though again Justices Stevens, Scalia, Souter and Thomas are together on the majority opinion which, per Justice Scalia, reverses a state conviction).
February 21, 2005
A long weekend in review
Of late I have been finding it personally useful to thematically organize and link recent posts (as I did here and here last week), and thus below I have done more of the same to wrap-up the end of a long weekend:
BOOKER CIRCUIT COURT DEVELOPMENTS
- Is it en banc time for Ameline?
- A questionable 8th Circuit affirmance
- Some smaller circuit Booker dispositions
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Collecting, parsing and sharing post-Booker data
- Layperson's Guide to Booker
- Compilation of post-Booker federal decisions
- More on departures and variances: not quite as easy as 123
- Songs in the key of 3553
Mandatory minimum challenges and test cases?
Especially with the plain error doctrines creating the prospect that some (perhaps many) defendants will not get the benefits of the Blakely/Booker rulings simply because they failed to raise the issue at pre-Blakely sentencings, I have been wondering lately whether defendants, in both state and federal systems, still subject to mandatory minimum provisions based on judicial fact-finding have been raising constitutional challenges simply in order to preserve the issue until the Supreme Court may have occasion to reconsider its Harris ruling. Many folks have been predicting Harris' demise since Blakely was decided, and that decision's status was left unaddressed in Booker (although I have heard arguments that Harris is stronger and that Harris is weaker after Booker).
More generally, as I suggested in this post about broader due process principles, the reasoning of Justice Stevens' merits majority in Booker might support a wholesale reconsideration (and invigoration) of due process concepts at sentencing. Indeed, as one thoughtful commentor suggested here (see the third comment), the whole arena of mandatory minimum sentencing might be ripe for new constitutional challenges in the wake of Blakely and Booker. I wonder if there are any on-going efforts within the defense bar to identify sympathetic defendants with compelling facts to provide an effective test case for a new set of constitutional arguments against mandatory minimum sentencing.
UPDATE: A reader followed-up on this post by sending along a recent cert. petition challenging, on equal protection grounds, an application of North Carolina's Habitual Felon Act. Though this petition, which is available for downloading below, does not build on Blakely and Booker, it reveals one of the many ways in which the application of mandatory sentencing laws can be challenged.
Is it en banc time for Ameline?
David Porter over at the Ninth Circuit Blog here last week detailed that the government has sought expedited consideration of whether to rehear en banc the Ninth Circuit's important Ameline ruling (basics here, commentary here), and has also filed a motion to defer disposition of all pending direct criminal appeals presenting Booker claims pending resolution of the government's petition for rehearing en banc). A copy of the government's en banc petition is available here. In addition to providing the government's arguments on plain error issue, the brief has some very interesting statements about the practical consequences of mass remands in the circuit"whose district judges impose more Guidelines sentences per year than any other Circuit."
Collecting, parsing and sharing post-Booker data
As stressed in much of the USSC testimony last week, the role and importance of the US Sentencing Commission in collecting and disseminating post-Booker data cannot be overstated. (This was one focal point of my USSC testimony and recent blog posts here and here.) Indeed, I recently received a note from an insightful reader that stated this point so eloquently I am moved to quote his sentiments:
The Commission must take the lead in documenting statistically-valid data in order to help judges better understand national sentencing patterns. Only then can we hope for penal consistency that falls in line with the sentencing factors outlines in 18 USC 3553(a).
But, as suggested in prior posts, such data collection is easier said than done, especially if the lines between guidelines, departures and variances end up becoming blurry (as discussed here and here). Further, at the USSC hearings, Professor Steve Saltzberg and USA Robert McCampbell both insightfully stressed that we ought to be concerned more with the magnitude of variances than the raw number, since large variances pose a much greater risk of disparity than small ones. (McCampbell earned extra points in my book when he actually quoted directly from my article Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000), where I suggested at pp. 96-101 that appellate review of departures focus more on the extent of departure rather than on the threshold decision to depart.)
Of course, in this context, it should be highlighted that the USSC is not the only institution collecting data. Indeed, at the USSC hearings, USA Robert McCampbell noted that DOJ "will be collecting data," and McCampbell interestingly went to great lengths to stress that DOJ's internal recording form "does not include a way to report the name of the judges ... [because the] individual name of the judge won't help all of us ... make the policy decisions we need to make."
Though I suspect most judges will generally be glad to hear that DOJ is not "taking names," it seems worth noting that a lot of state sentencing systems include so called "judge-identifiers" in their sentencing data set. But, putting that issue aside, I wonder if DOJ might consider making public the data it collects as the post-Booker world develops. More generally, I hope that any and all institutions besides the USSC that are tracking post-Booker developments will generally have a sharing attitude.
Layperson's Guide to Booker
The fine lawyers at the Federal Defender Services of Wisconsin were kind enough to send me a copy of their recent newsletter (quaintly called the Doing Time Times), which includes an extended section titled "A Layperson's Guide to Booker." This document, which can be downloaded below, proves that the folks at Booker ground zero can help the average person understand Booker. Now they just need to explain it to the rest of us.
Perspectives on sex offender sentencing and treatment
In recent Booker-related posts here and here, I have stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker. In an interesting post here, TalkLeft spotlights this very important issue in the context of sex offender sentencing and treatment. In addition to encouraging a review of that post, here are some earlier related posts on sex offender sentencing:
- The power of the headline-making crime
- Intriguing report about sex offenders
- Sex offender sentencing
February 20, 2005
Compilation of post-Booker federal decisions
With thanks to the Third Circuit Blog for the pointer, I see that the the Office of Defender Services Training Branch (ODSTB) of the Administrative Office of the U.S. Courts has this Blakely/Booker page for defense counsel. Though the website is a bit dated (by reflecting more post-Blakely than post-Booker developments), the site now includes a link to this terrifically and oft-updated comprehensive outline of post-Booker decisions as of February 17, 2005. Prepared by Frances H. Pratt, Research and Writing Attorney Office of the Federal Public Defender in Alexandria, Virginia, this outline provides the most complete review of post-Booker decisions I have seen (including a lot of habeas decisions that I have not had a chance to discuss on the blog).
A questionable 8th Circuit affirmance
An insightful reader has reminded me that, in addition to all the late week circuit Booker action spotlighted here, the Eighth Circuit's affirmance of a guideline sentence in US v. Lussier, 2005 U.S. App. LEXIS 2735 (8th Cir. Feb. 17, 2005) (available here), merits mention and some pondering.
This Lussier case is notable because, without any detailed exploration of new appellate review standards, the Court purports to apply a post-Booker "reasonableness" standard to affirm a district court's pre-Booker sentence. In a fairly cursory opinion, the Lussier court begins its review of the district court's pre-Booker sentencing decisions by citing Booker in support of this statement of the standard of review: "We give deference to a district court's sentencing decision and will reverse a sentence applying the Guidelines only if it is unreasonable."
But after this mention of Booker, the Lussier court proceeds to analyze the case on review as if Booker did not change federal sentencing realities. The court relies on pre-Booker precedents as it assesses (and affirms) the district court's judgment that the defendant had not met his burden of establishing an entitlement to a sentencing reduction under USSG 2K2.1(b)(2) providing for a reduced offense level if an illegal firearm was possessed "solely for lawful sporting purposes or collection." In so doing, the Lussier court does not address the (quite significant) possibility that under the new Booker sentencing system, the district court might have sentenced the defendant much differently — indeed, might have been obliged to sentence the defendant much differently — in light of the 3553(a) factors.
As I read Justice Breyer's remedy opinion, a reviewing court's task post-Booker is not simply to review if guideline calculations were done reasonably, but rather to ensure that, in light of the 3553(a) factors, the sentence imposed was reasonable. Since sentencing at the district court took place pre-Booker, no one had analyzed the Lussier case in light of the 3553(a) factors. Consequently, even though the guidelines may have been calculated properly, I think a remand for reconsideration would have been more appropriate in this case. (Notably, this seemed to be the Second Circuit's approach in US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005), where the court remanded on the basis of Booker and Crosby even after it concluded the applicable guideline range had been properly calculated.)