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March 7, 2006

Still clearing out the Booker pipeline

Two recent decisions from the Fifth and Seventh Circuits highlight that, a full 14 months after the Supreme Court's Booker ruling, the appellate pipeline still has cases being cleared out:

  • The Fifth Circuit in US vs. Robles-Vertiz, No. 04-50585 (5th Cir. Mar. 6, 2006) (available here), disposes of an appeal GVRed by the Supreme Court by concluding the defendant "cannot satisfy plain error review [and] cannot demonstrate the presence of extraordinary circumstances that would entitle him to resentencing."

  • The Seventh Circuit in US vs. Bonner, No. 02-4272 (7th Cir. Mar. 7, 2006) (available here), clarifies that a full resentencing should take place when a Paladino limited Booker plain-error remand would be appropriate but the original sentencing judge is unavailable.

March 7, 2006 at 04:05 PM | Permalink

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The Robles panel specifies courts must consider the guidelines "And, finally, even though the Guidelines are now advisory, sentencing courts still must consider them." id.
But the next day in U.S. v. Reinhart 05-30245 (5th Cir. Mar. 7, 2006), they declined to give the advisory guielines a quasi-mandatory status. The Fifth Circuit panel found a sentencing increase from a guideline range of 121 to 151 months to 235 months was a reasonable sentence since it was where the judge originally sentenced Reinhart, before he was successful twice on appeals.
Reinhart’s crime is as the judge described; “your particular offense are of the nature
that this Court would presume and believe to be the most heinous of all
crimes in that you took advantage of children that were under your care as a Boy
Scout leader.” Id. U.S. v. Reinhart, 05-30245 (5th Cir. Mar. 7, 2006).
I don’t like Reinhart any more than the court does, but the court should not utilize the threat implied by this ruling to “chill the exercise” of appealing sentences . “Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, "penalizing those who choose to exercise" constitutional rights, "would be patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to "chill the exercise of basic constitutional rights." Id., at 582. See also Griffin v. California, 380 U.S. 609; cf. Johnson v. Avery, 393 U.S. 483. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law.[Footnote 19] "A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant." Nichols v. United States, 106 F. 672, 679. A court is "without right to . . . put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered. . . . [I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice." Worcester v. Commissioner, 370 F.2d 713, 718. See Short v. United States, 120 U.S. App. D.C. 165, 167, 344 F.2d 550, 552. "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12; Douglas v. California, 372 U.S. 353;” NORTH CAROLINA v. PEARCE, 395 U.S. 711, 725 (1969)
However, the Reinhart panel did decline to give the guidelines “quasi-mandatory status”, “[w]e therefore decline to give the guidelines the quasi-mandatory status urged by Reinhart.” But the advisory guidelines are quasi-mandatory, in that courts “must” determine the appropriate guideline sentence, and a sentence within the guidelines is rarely unreasonable. “It will be rare for a guideline sentence to be found unreasonable, but a nonguideline sentence requires a more thorough review”. United States v. Smith, 417 F.3d 483, 490 (5th Cir.) (citing Mares, 402 F.3d at 519), cert. denied, 126 S. Ct. 713 (2005). Reinhart’s mandatory sentence was unconstitutional and this sentence violates due process and is likewise unconstitutional.

Posted by: Barry Ward | Mar 8, 2006 11:25:36 AM

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