February 23, 2005
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.)