February 1, 2006
Important Booker twosome from the Tenth Circuit
Late yesterday, while others were gearing up for a big speech or litigating the constitutionality of lethal injection protocols, the Tenth Circuit released two significant sentencing opinions: US v. Wolfe, No. 04-2114 (10th Cir. Jan. 31, 2006) (available here), and US v. Crockett, No. 04-4204 (10th Cir. Jan. 31, 2006) (available here).
In the Wolfe decision, the Tenth Circuit in a drunk driving case reverses the district court's (pre-Booker) decision to depart upward, concluding that "the district court erred in departing upward based on factors that impermissibly double-counted facts that were already taken into account by the guidelines' calculation of the applicable sentencing range or by other departure factors [and that] the district court failed to explain the degree of its departure adequately." The extensive and thoughtful Wolfe ruling is includes lots of the right stuff in dicta about post-Booker sentencing: among other key points, footnote 6 in Wolfe suggests the Tenth Circuit disagrees with the Seventh Circuit's peculiar claim that "the concept of 'departures' has been rendered obsolete in the post-Booker world."
In the Crockett decision, however, the Tenth Circuit manages to commit much Booker vice in a single paragraph. Here is the paragraph in Crockett that seems like a crock:
Defendant also argues that giving the Guidelines a high level of deference on remand would violate his Sixth Amendment rights by de facto making the Guidelines mandatory. However, Booker instructs that trial courts, "while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." 125 S. Ct. at 767. Further, the opinion indicates that trial courts must accord deference to the Guidelines: "These features of the remaining system, while not the system Congress enacted, nonetheless continue to move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. Thus, we decline Defendant's invitation to dilute the influence of the Guidelines upon remand of his sentence.
This paragraph seems so wrong because I do not think it is at all fair to read Booker as indicating "that trial courts must accord deference to the Guidelines." The Booker remedial opinion states that judges must "consider," "consult" and "take ... into account" the guidelines, but no where does Booker say the guidelines must be accorded deference by sentencing courts.
Moreover, I think the Booker merits opinion gives force to the claim that giving the guidelines too much deference triggers constitutional concerns. After all, district judges had significant (though cabined) discretion to depart from the guidelines before Booker, but the Supreme Court did not think that the discretionary authority provided by traditional departures preserved the system's constitutionality. Put another way, after Booker, the influence of the Guidelines has to be diluted to avoid the constitutional problems that led to the Booker ruling. (At least that's what Justice Scalia explained in his Booker opinion and what perhaps as many as seven members of the current (Scalia-Thomas?) Court might now believe.)
Pardon the gratuitous pop culture references, but that's what happens after watching Dennis Miller's latest HBO special (which was good but not great).
February 1, 2006 at 12:37 PM | Permalink
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Bingo -- Crocket clearly brings the 10th Circuit onto thin Apprendi ice. But some circuits have already fallen in: The Fifth Circuit, for instance, holds that sentences within the Guidelines are presumed reasonable, but that sentences outside the Guidelines must be accompanied by specific findings on the record which justify the reasonableness of the sentence. This is exactly like the system at issue in Blakely : sentences inside the Guidelines ok, higher sentences require findings, albeit open-ended qualitative findings. The only difference is the precise content of the findings (Washington required finding that substantial and compelling reasons justify an exceptional sentence, Fifth Circuit requires finding that sentence is reasonable in light of the 3553(a) factors) and the source of the law that gives rise to them. These distinctions do not make a constitutional difference
Posted by: R/W | Feb 1, 2006 1:40:07 PM
If consulting the guidelines means judge-fact-finding, post verdict, then the Sixth Amendment has been violated and the error should cease, not be reviewed for reasonableness, “Defendant also argues that giving the Guidelines a high level of deferenceon remand would violate his Sixth Amendment rights by de facto making the
Guidelines mandatory. However, Booker instructs that trial courts, “while not
bound to apply the Guidelines, must consult those Guidelines and take them into
account when sentencing.” 125 S. Ct. at 767. Further, the opinion indicates that
trial courts must accord deference to the Guidelines: “These features of the
remaining system, while not the system Congress enacted, nonetheless continue to
move sentencing in Congress’ preferred direction, helping to avoid excessive
sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” Id.” See US v. Crockett, No. 04-4204 (10th Cir. Jan. 31, 2006)
The Supreme Court did not agree with the government’s vision of what Congress enacted, “The Government thus contends that, whether or not the defendant chooses to submit to a jury the question of his guilt, the death penalty may be imposed if and only if both judge and jury concur in its imposition. On this understanding of the statute, the Government concludes that the death penalty provision of the Kidnaping Act does not operate to penalize the defendant who chooses to contest his guilt before a jury. It is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions, for it is not, in fact, the scheme that Congress enacted.” United States v. Jackson, 390 U.S. 570 (1968)
And the Supreme Court would not allow “creat[ions] from whole cloth. “It is one thing to fill a minor gap in a statute to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality. United States v. Jackson”, 390 U.S. 570 (1968)
But in Booker, Justice Breyer and a small majority judicially enacted what Congress explicitly rejected, “advisory guidelines”. It is unconstitutionality of replacing the fact-finder; the jury, which was not waived in Crockett’s case, the post verdict proceedings provided none of the structural framework of a fair trial, and no result from such a proceeding can be considered reasonable when entirely unconstitutional.
Posted by: Barry Ward | Feb 1, 2006 4:50:47 PM
Ditto on Doug's and R/W's comments. It's funny that Courts of Appeals are instructing district judges about deference to the Guidelines, when ordinarily the question in an appeal is how much deference are the CoAs going to give the trial judge. After all, he or she presided over the entire trial and sentencing hearing, resulting in a far superior vantage point to decide the "justness" (see 3353(a)) of a given sentence.
From my perspective, the "reasonableness" appellate review -- unless a Circuit decides to be highly deference to the decision of the district judge -- upsets our traditional understanding of the role of appellate courts. This is a grave turn of events. In particular, "reasonableness" review is intentionally legally standardless ("Looks reasonable to me" -- "Doesn't look reasonable to me"); its role is nothing more than to have political control (through control over the political makeup of the CoAs -- remember the filibusters?) over individual district judges' decisions. "Reasonableness review" is fundamentally an assault on the Rule of Law. What a sad day.
Posted by: Mark | Feb 2, 2006 10:08:37 AM