March 5, 2005
Latest compilation of post-Booker decisions
Frances H. Pratt, Research and Writing Attorney in the Office of the Federal Public Defender in Alexandria, Virginia, has updated her extended outline of post-Booker decisions all the way through this amazing sentencing week.
The updated outline now runs 37 pages (having grown 5 pages just this week) and can be downloaded below. By early next week, this latest version (and thereafter any subsequent versions) of the outline should be accessible at this link.
The costs of capital (punishment)
A few months ago I noted here a new attentiveness to the extraordinary economic costs of administering a system of capital punishment. Thanks to How Appealing, I see that the Los Angeles Times, in this fascinating article in Sunday's paper, has calculated that
the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life and not counting the millions more in court costs needed to prosecute capital cases and hold post-conviction hearings in state and federal courts.
The article then calculates that, with "11 executions spread over 27 years, on a per-execution basis, California and federal taxpayers have paid more than a quarter of a billion dollars for each life taken at state hands."
The LA Times article includes a lot of other interesting California capital sentencing information, including the notable decline in the number of death sentences imposed: "In 1999, [California] juries imposed 42 death sentences. In 2004, the number dropped to nine." This datum provides yet more evidence, as detailed previously here and here and here, that the death penalty is in decline.
If you have somehow caught up on all the sentencing reading recently provided for us by the courts (just some of which is linked here), there is no shortage of additional reading being provided by academics. Below I have listed and linked just a few of the articles I recently noticed on SSRN that are sentencing related:
- The Untimely Death (and Rebirth?) of the Federal Sentencing Guidelines by Professor Roger Craig Green
- Can 'Death Row Phenomenon' Be Confined to Death Row Inmates? by Professor Tung Yin
- A Map of Sentencing and A Compass for Judges: Sentencing Information Systems, Transparency and the Next Generation of Reform by Professor Marc L. Miller
- Handcuffing Justice: The Shaky Empirical Foundations of the Feeney Amendment and also Racial and Gender Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics both by Professor Max M. Schanzenbach
- The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment can Teach the Sixth by Professor Paul F. Kirgis
- Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum's Curtailment of the Prosecutor's Duty to 'Seek Justice' by Professor Amie N. Ely
- Moral Accuracy and 'Wobble' in Capital Sentencing by Professor Scott E. Sundby
Roper's impact on the next chief?
Commentary on the Roper decision continues to appear in the papers and the blogsphere, and SCOTUSblog here and How Appealing everywhere are the places to go for links to much of it. But this morning I was especially intrigued by this piece from Tony Mauro suggesting Justice Kennedy's work in Roper could hurt his chances to be the next Chief Justice. (Recall my long-ago speculations here than Booker might impact the Chief sweepstakes. That's pretty unlikely now that Justices Stevens and Breyer were the opinions' authors.)
Even before Roper, I saw Justice Kennedy as fourth in line among current Justices for the top spot on the Court (behind Justices Scalia, Thomas and O'Connor). Moreover, because of the predicted battle royale over coming SCOTUS nominations, the White House may well opt to nominate an outsider directly to the position of Chief rather than have to battle twice over an internal elevation and an outside nomination.
March 4, 2005
What a sentencing week!
I predicted March Madness in the world of sentencing, but this week alone has brought more sentencing news of note than I ever could imagine. In addition to all the news I've post here, How Appealing and the SCOTUSblog have had lots of Roper items of late, and this afternoon I see How Appealing also provides links here to an important Ninth Circuit three strikes decision and here to an important Eleventh Circuit prisoner rights decision. (Readers can guess the outcomes based on the circuits.)
Simply in order to help me organize this amazing start to March, below I continue my tradition (as established here and here and here and here and here) of linking some recent posts. (I hope regular readers might report in the comments if you find this tradition more annoying than valuable).
BOOKER CIRCUIT COURT DEVELOPMENTS
- Intra-circuit split in the First Circuit
- The 5th Circuit is silent no more!
- More interesting Booker remands from the Sixth Circuit
- Contrasting circuit approaches to GVRs
- More rapid remands on Booker grounds
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- The price of justice (aka the costs of Booker)
- The fate and future of appeal waivers?
- Judge Gertner speaks on Booker!
- Judge Adelman strikes again
- Martha reportedly says: "I just hate these sentencing guidelines."
- Judicial perspectives on Booker
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Alaska's Blakely fix
- Tennessee's "official" Blakely fix
- Interesting NASC newsletter
- The state Blakely beat
ROPER DECISION AND COMMENTARY
- Administering Roper
- More Roper thoughts and the development of state constitutional law
- Roper around the blogsphere
Intra-circuit split in the First Circuit
While the Fifth Circuit today in Mares (basics here) made deeper the three-way circuit split on how to handle Booker plain-error claims, two judges today in the First Circuit issued a lengthy concurrence in US v. Serrano-Beauvaix, No. 02-2286 (1st Cir. Mar. 4, 2005) (available here) to explain why they are unhappy with where the First Circuit is located in the plain-error universe.
Judge Lynch writes for the court in Serrano-Beauvaix, and along the way she reiterates the circuit's position, established last week in Antonakopoulos (basics here), that "the defendant must persuade us that there is a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." The defendant in Serrano-Beauvaix did not meet this standard.
But, to add to our Booker fun, Judge Lipez, joined by Judge Torruella, adds a 12-page concurrence in which he urges the circuit to follow the Sixth Circuit's plain error lead:
I agree with the result of the application of Antonakopoulos to this case. I write separately, however, to explain why, if I were free to do so, I would take a different approach to reviewing unpreserved claims of Booker error....
I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred."
The price of justice (aka the costs of Booker)
The ever speedy How Appealing (which looks extra pretty with its move to Movable Type) earlier today had posted here today's interesting news release from the Administrative Office of the U.S. Courts, which declares "Courts Gird for Likely Impact of Sentencing Appeals, Class Action Lawsuits" and details that President Bush has now forwarded to Congress the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year. As further detailed in this letter from Leonidas Ralph Mecham, director of the Administrative Office of the US Courts, to President Bush, the Judicial Conference asked for a total emergency supplemental appropriations of $101.8 million, with the additional $10.5 million sought to cover the impact of the recent federal class action legislation.
Though the news release and letter are interesting, even more fascinating (and worthy of future posts this weekend) is this memo providing the Judicial Conference's detailed description of the cost impact of Booker. The memo allocates the $91.3 million in requested additional funding by earmarking $30 million for district and circuit courts, $60 million for defender services, and a (measly?) $1.4 million for the Federal Judicial Center and the US Sentencing Commission.
Though the memo reviewing cost estimates is quite thoughtful and thorough, I think it may under-estimate the judiciary's post-Booker needs in various ways. Moreover, this request for funds does not address the added costs being borne by the Justice Department in the wake of Booker, nor the additional costs that would surely flow if (when?) Congress potentially muddies up the federal sentencing waters further through some form of Booker "fix."
The 5th Circuit is silent no more!
Howard Bashman had the news (and my preferred title) first here at How Appealing: the Fifth Circuit has broken its surprisingly long Booker silence today (background here and here) with US v. Mares, No. 03-21035 (5th Cir. Mar. 4, 2005) (available here). Here are the summary highlights:
Mares raised this [Booker] issue for the first time in his brief filed with us on direct appeal. We agree with the Eleventh Circuit that our review is for plain error. United States v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.
UPDATE: Mares proves to be another case in which the court employed a quasi en banc process, as the court explains:
After circulating this opinion to all members of the court this panel has benefitted from and incorporated into the opinion many of their comments.
In addition, the Court in Mares goes out of its way to speak broadly to a range of post-Booker sentencing issues, noting that "we think it appropriate for us to explain at the outset how we understand the Supreme Court expects sentencing will proceed under its decision in Booker/Fanfan." In Mares this means, inter alia, the most direct state by a Circuit court that post-Booker judicial fact-finding is to look just like pre-Booker judicial fact-finding:
The Guideline range should be determined in the same manner as before Booker/Fanfan. Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing. 125 S.Ct. at 750, 764. The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.
The Fifth Circuit in Mares also comes closest to suggesting that a sentence within the applicable guidelines will be per se reasonable:
If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines. Given the deference due the sentencing judge’s discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say such a sentence is "unreasonable."
Alaska's Blakely fix
Yesterday I reported here on Tennesse's developing Blakely fix, which adopts an "advisory guideline" approach in the wake of Booker. Providing an interesting contrast, today I received news about Alaska's developing and distinct Blakely fix, which is now in the form of this bill that has already been passed by the Alaska legislature and is awaiting transmittal to Alaska's governor for signature.
As detailed in the bill, the Alaska legislature is mostly opting to Blakely-ize its sentencing scheme. Here's how the bill was described in an e-mail to me:
The provisions in the bill that directly address Blakely are contained in sections 1 (legislative intent) and 21 of the bill, which sets forth how a defendant receives notice of proposed aggravating factors and requires that they be proved to a jury beyond a reasonable doubt. In addition, section 2 provides that aggravating factors need not be specificied in an indictment. The bill also changes from a system of specific presumptive terms to presumptive ranges.
The fate and future of appeal waivers?
A remarkably important and remarkably under-examined feature of the pre-Blakely/Booker world of federal sentencing involved the widespread use of appeal waivers in plea agreements. As suggested here, we are already seeing some varied circuit approaches to addressing the fate of pre-Blakely/Booker appeal waivers, and of late I have been pondering the law, policy and practice of post-Booker appeal waivers.
Appeal waivers — which can be very broad or quite narrow — have long been controversial in the federal system, and different US Attorney Offices and different district judges have had different policies and approaches to such waivers. See generally Windows into Sentencing Policy and Practice: the Crack/Cocaine Ratio and Appeal Waivers, 10 Fed. Sentencing Rep. 179 (1998). Every federal circuit has upheld the generally validity of such waivers of appeal, although a number of judges have expressed concern that such waivers are "inherently uninformed and unintelligent" and that broad appeal waivers frustrate Congress's policy decision in the Sentencing Reform Act to utilize appellate review to help eliminate unwarranted sentencing disparity. See id. at 181-82.
As detailed in a Second Circuit brief available for download below, the government seems inclined to try to continue to enforce, though motions to dismiss a Booker appeals, ple-Blakely appeal waivers. But the "old" arguments against enforcing appeal waivers seem especially potent now: (1) from a defendant's perspective, appeal waivers entered pre-Blakely were obviously uniformed and unintelligent concerning the realities of a post-Booker world, and (2) from a system-wide perspective, Justice Breyer's remedial work in Booker asserts that Congress would strongly favor the "retention of sentencing appeals ... to iron out sentencing difference." Booker, slip op. at 21.
For these reasons, I think a strong argument can be made that pre-Blakely appeal waivers should now be unenforceable or that circuit courts should now at least review all appealed sentences for reasonableness, as the Eighth Circuit did in Killgo (details here). And, again because of Justice Breyer's strong advocacy of Congressional interest in appellate review, perhaps district courts post-Booker ought to have renewed concerns about accepting pleas with appeal waivers.
More interesting Booker remands from the Sixth Circuit
The Sixth Circuit continues to be the busiest court in the Booker business as today it has two more (unpublished) Booker opinions remanding cases to the district court. In addition, as detailed by Appellate Law & Practice here, the Sixth Circuit also seems to be almost automatically remanding cases that were GVRed back to the Circuit from the Supreme Court. (A previous discussion of circuit contrasts with the GVR cases is here, and Appellate Law & Practice here assails the Eleventh Circuit's approach to GVRs in Dockery.)
The notable opinions on-line today (though dated yesterday) are US v. Williams, No. 03-6493 (6th Cir. Mar. 3, 2005) (available here) and US v. Tate, No. 02-4382 (6th Cir. Mar. 3, 2005) (available here). The Tate case involved a preserved objection to drug quantity findings by the sentencing judge that enhanced the applicable guideline range, and the Sixth Circuit ordered a remand by simply stating: "Unless the Sixth Amendment error is shown to be harmless, reversal is appropriate. Because there has been no showing that the error was harmless, Tate is entitled to re-sentencing."
The Williams case involved an unpreserved Booker claim (and also did not involve any judicial fact-finding). Drawing heavily from the Sixth Circuit's ruling in Barnett (discussed here), here's how the Williams Court explains its plain error approach:
This court in United States v. Barnett recently held, under circumstances materially indistinguishable from those here (including plain-error review), that a defendant meets the first, second, and fourth prongs of the plain-error test when sentenced under mandatory Guidelines. See United States v. Barnett, 2005 WL 357015, at *8, 12 (6th Cir. 2005). As regards the third prong, Barnett requires panels of this circuit to presume prejudice unless record evidence exists to rebut the presumption. Barnett, 2005 WL 357015, at *12.
A review of the sentencing-hearing transcript shows the district court here struggled with the decision to commit Williams to a prison setting instead of home confinement. The court called this a "fairly close case" and recognized that Williams suffers from "a very significant physical impairment." The court, however, concluded that the Guidelines contemplated "something more" for § 5H1.4 relief and thus denied the departure. The record lacks "clear and specific evidence" demonstrating that the district court would not have granted the departure under advisory Guidelines.
Williams's case meets the Barnett standard for exercising our discretion to notice the error. We vacate his sentence and remand to the district court for resentencing under the new rubric established by Booker.
March 3, 2005
Judge Gertner speaks on Booker!
This morning I noted here that there had been surprisingly few major district court Booker rulings of late. Thus, it is perhaps fitting that today, in addition to the potent work of Judge Adelman in Smith on on crack/powder issues (basics here), we now get Massachusetts US District Judge Nancy Gertner's insights on the post-Booker sentencing world. In US v. Jaber, No. 02-CR-10201-NG (D. Mass. Mar. 3, 2005), which can be downloaded below, Judge Gertner details at length — 39 pages, in fact — her view of "the applicable legal framework [for sentencing] in light of United States v. Booker."
Based on a very quick overview, Jaber appears to be another tour-de-force from a judge who has already earned her place in my Hall of Fame. Here are a few introductory highlights from today's second must-read district court opinion:
[A]n "advisory" regime makes it all the more important that I adhere to my practice of writing opinions, outlining the reasons for the sentences I have imposed. As I describe in greater detail below, "advisory" does not mean a regime without rules, or a return to the standardless sentencing which preceded the SRA. Nor does it mean slavish application of the Guidelines under the guise of fair "consideration," an approach which is now unconstitutional. "Advisory" means something in-between.
Contrasting circuit approaches to GVRs
As detailed here and here and here, there have been more than 500 Booker-inspired GVRs in which the Supreme Court sent sentencing appeals back to the circuit courts. Today, in brief decisions from the Sixth and Eleventh Circuits, we see another example of contrasting circuit justice in the handling of these GVRed cases.
The Sixth Circuit in US v. Loverson, No. 03-6120 (6th Cir. Mar. 3, 2005) (available here), simply explains, "[u]pon reconsideration, we conclude that the district court's sentencing order must be vacated and the case remanded for re-sentencing." In contrast, in US v. Dockery, No. 03-1638 (11th Cir. Mar. 3, 2005) (available here), the Eleventh Circuit relies on post-Apprendi circuit precedent and the fact that, in his initial brief, "Appelllant asserted no such Apprendi (or its progeny) challenge to his sentence" in order to "reinstate our previous opinion in this case and affirm, once again, Appellant's sentence after our reconsideration in light of Booker, pursuant to the Supreme Court’s mandate."
Tennessee's "official" Blakely fix
Last month I reported here and here on work being done by Tennessee's Blakely task force. Today, David Raybin, who has been integrally involved in the task force's work, sent me two documents reflecting the task force's official product. It is fascinating stuff and highlights one of the many ways that Booker has shifted debate in the states over Blakely.
The first document, available for downloading below, is the task force's Final Report. This document explains that the Task Force considered but rejected a bifurcated jury approach, as well as a wide-open discretionary judge-sentencing system, and instead adopted an "advisory guideline" approach. The second document, also available for below, is the task force's proposed legislation itself. As David Rabyin explained in his e-mail:
Our proposal removes presumptive sentencing from Tennessee law so as to comply with the United States Supreme Court decisions. The former presumptive sentence provisions are replaced with a series of guidelines that include enhancement and mitigating factors and a statement of principles and sentencing considerations. The proposed Act requires the judge consider, but not be bound by, these advisory guidelines to arrive at an appropriate sentence which is subject to appellate review.
David also explained in his e-mail that:
There was significant debate over [our] proposal which seemingly violates Blakley. However, once we concluded that Booker trumps Blakely, we were satisfied that this was a sound alternative. The new law will be prospective given ex post facto considerations but a defendant may opt in by executing a waiver. There are a few new benefits under the law such as increased probation eligibility.
Judge Adelman strikes again
Wisconsin US District Judge Lynn Adelman — who helped define the post-Booker debate with his Ranum opinion (basics here, commentary here and here), and added great insight with his subsequent Galvez-Barrios opinion (basics here, commentary here) — has added another impressive effort with US v. Smith, No. 02-CR-163 (E.D. Wisc. Mar. 3, 2005).
Smith — which can be downloaded below and merits a close read for all its insights — deals with post-Booker judicial fact-finding, departures based on substantial assistance and other important issues. But the fireworks come in Smith's discussion the disparity between crack and powder cocaine. Here are just some of the some highlights:
As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine. In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine.... Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing....
The Commission has studied the issue in depth and concluded that the assumptions underlying the disparity between crack and powder are unsupported by data.... [N]one of the previously offered reasons for the 100:1 ratio withstand scrutiny. Perhaps most troubling, however, is that the unjustifiably harsh crack penalties disproportionately impact on black defendants....
Primarily as the result of the different penalties for crack and powder cocaine, and contrary to one of the Sentencing Reform Act's primary goals, the sentencing guidelines have led to increased disparity between the sentences of blacks and whites.... [T]he disparity in sentences involving crack and powder brings irrationality and possibly harmful mischief into the criminal justice system.
To its great credit, the Commission has repeatedly sought to reduce the disparity.... Only Congress can correct the statutory problem, but after Booker district courts need no longer blindly adhere to the 100:1 guideline ratio.
In the present case, I concluded that adherence to the guidelines would result in a sentence greater than necessary and would also create unwarranted disparity between defendants convicted of possessing powder cocaine and defendants convicted of possessing crack cocaine. The question then became what ratio to apply. Everyone seems to agree that 100:1 is too high.... The Commission has studied this issue and acquired expertise [and proposed a 20:1 ratio], [and thus] I gave its recent recommendation heavy weight.
Interesting NASC newsletter
I noted here last night that the state Blakely story keeps humming along, and more proof today comes from this newsletter of the National Association of Sentencing Commissions. The NASC newsletter, which includes sentencing updates from more than a dozen states, shows not only how much state Blakely activity is on-going, but also how many other important sentencing issues are being worked through at the state level in a number of jurisdictions.
Interesting 6th Circuit Booker dicta
The Sixth Circuit, which now has issued 20 opinions addressing Booker, today has a Booker remand which includes some interesting dicta encouraging district courts to explain its post-Booker sentencing decisions. In US v. Jones, No. 03-6016 (6th Cir. Mar. 3, 2005) (available here), the court says:
The district court's sentence, and its exercise of discretion (if any), must be reviewed by an appellate court for "reasonableness." Accordingly, on remand, we encourage the sentencing judge to explicitly state his reasons for applying particular Guidelines, and sentencing within the recommended Guidelines range, or in the alternative, for choosing to sentence outside that range. Such a statement will facilitate appellate review as to whether the sentence was "reasonable." However, we take no position as to the content or extent of such a statement.
UPDATE: Appellate Law & Practice has more on Jones here.
Martha reportedly says: "I just hate these sentencing guidelines."
Laurie Cohen has this front-page story (subscription required) on Martha Stewart's prison experiences. The long piece includes a lot of interesting sentencing items and some Booker discussion. Here are a few highlights:
On a recent morning in a dining room at the federal prison camp here, Martha Stewart listened, banana in hand, as two inmates told her of the assets they had to forfeit before serving lengthy sentences. A frustrated Ms. Stewart pounded her banana on the table, an inmate recalls. Susan C. Spry, serving a 12-year, seven-month sentence for possession of methamphetamine, says she blurted: "Martha, you're bruising your banana!" She says Ms. Stewart responded: "I just hate these sentencing guidelines." ...
During her stay, Ms. Stewart, perhaps the nation's most famous federal convict, has become interested in prison and sentencing reform. After a landmark U.S. Supreme Court ruling in January that rendered mandatory sentencing guidelines unconstitutional, she wrote that she worried her fellow inmates would sink into a "severe depression" if courts fail to grant them shorter sentences....
In light of the Supreme Court's ruling, a number of Alderson inmates have filed petitions to get their cases reconsidered. "People were running up and down the hall cheering" on Jan. 12, the day the Supreme Court struck down the constitutionality of mandatory sentencing guidelines, says [a fellow inmate], whose own petition has been stayed. Ms. Stewart, she says, "has passed along whatever information she found out from her lawyers and has been galvanizing in terms of encouragement and exhortation to action."...
But as Ms. Stewart predicted, many whose spirits were raised have become depressed again as they have learned that courts are unlikely to re-open plea bargains, in which defendants are required to waive appeals. "Most women are disappointed now," says [another inmate], who was also a lawyer, judge and prosecutor before being sent to prison. "And most are realistic."
More Booker reports from the front lines
There have been surprisingly few major district court Booker rulings of late, but newspaper stories continue to provide a window on the post-Booker sentencing world.
For example, this story from Detroit quotes from local judges and reports on a number of cases impacted by Booker; this story from Baltimore reports on fraud sentencing which apparently included a small departure though still resulted in a two-year prison term; this story from Peoria reports on a drug sentencing which apparently included a small variance though still resulted in an 11-year prison term. (These latter two stories reinforce a point I flagged here about the challenge of accurately reporting post-Booker sentences that are still "tough" even though they involve a downward departure or variance.)
The state Blakely beat
Though the state Blakely story continues to be eclipsed by federal sentencing developments, there is still notable news from the states on a regular basis. Consider the following recent articles:
- From Alabama, this article notes that the state's Chief Justice has called for a review of state sentencing laws in the wake of Blakely.
- From Arizona, this article discusses the impact of Blakely on the sentence in an assault case and also notes that the Arizona Supreme Court has taken up a new case with Blakely issues.
- From Ohio, this article provides a broad overview of Blakely's possible impact in the state.
In addition, I am very pleased to see Michael Ausbrook from INCourts is finally back on the Blakely beat. He has a post criticizing Booker here, praising the Oregon Supreme Court's Blakely decision in Dilts here, and assailing the "Booker back-pedaling" he has noted in California and Indiana here and here and here.