March 8, 2006
Seventh Circuit affirms within-guideline sentence
Perhaps I should stop reporting the dog-bites-man news of a within-guideline sentence being upheld as reasonable. But one line in the Seventh Circuit's work in US v. Ellis, No. 05-3676 (7th Cir. Mar. 8, 2006) (available here), really caught my eye.
In Ellis, the Seventh Circuit finds reasonable an 18-month within-guideline sentence for a former bishop who pleaded guilty to one count of willfully making and subscribing a false income tax return. Along with emphasizing the Circuit's presumption of reasonableness for a within-guideline sentence (background here), the Ellis court says: "While we would not necessarily impose the same sentence as the district court, our inquiry is bound by substantial deference to it." Though perhaps other rulings use this phrasing, I cannot recall previously seeing an assertion that reasonableness review binds a Circuit court to show "substantial deference" to a district court's sentencing judgment.
Fifth Circuit affirms long above-guideline sentence
Continuing the pattern detailed in this post, the Fifth Circuit late yesterday in US v. Reinhart, No. 05-30245 (5th Cir. Mar. 7, 2006) (available here), found reasonable a "non-guidelines" sentence of 235 months when the applicable guideline range was 121-151 months. The case has a long procedural history (and apparently ugly facts) that make the result not all that surprising. However, Reinhart is still important because of the Fifth Circuit's discussion of post-Booker sentencing and appellate review. Here are a few highlights:
Departure from the guidelines range, however, cannot alone support a finding of unreasonableness after Booker, in which the Court has indicated that the guidelines are merely one sentencing factor among many, and the calculated guideline range must be considered in conjunction with the other § 3553(a) factors. See Booker, 543 U.S. at 245-46. We therefore decline to give the guidelines the quasi-mandatory status urged by Reinhart.
Applying an abuse of discretion standard of review, we defer to the district court's reasonable assessment of the statutory factors, with particular emphasis on the nature and circumstances of the offense and Reinhart's history and characteristics. We will not require a district court to conform a sentence to the guideline range where that court has made a reasonable determination, based on a variety of other equally legitimate factors, that a non-guideline sentence is proper.
Reinhart provides yet another example, along with the cases detailed in this post, of an above-guideline sentence being subject to relatively deferential review. Meanwhile, below-guideline sentences continue to be subject to far greater scrutiny.
Some notable capital headlines nationwide
As is often the case, newspapers from many states have notable death penalty stories:
- From Georgia here, "Death penalty study narrowly clears committee"
- From Oklahoma here, "Legislation would allow death penalty for repeat sex offenders"
- From Wisconsin here, "Senate passes resolution asking voters to consider death penalty"
And over at FindLaw, Sherry Colb has this commentary about the Supreme Court's Guzek ruling (background here) entitled "The Death Knell of Residual Doubt: The Supreme Court Underestimates the Relevance of Innocence."
March 7, 2006
A gendered look at the post-Booker world
Professor Myrna Raeder has just posted on SSRN, available at this link, an interesting article entitled "Gender-Related Issues in a Post-Booker Federal Guidelines World." Here is a portion of the abstract:
This article updates, expands and revises the author's previous works concerning gender in sentencing in light of Booker. It describes the dramatic increase of the female incarcerated population in the federal system due primarily to drug offenses. It discusses the Guidelines concerted effort to produce identical sentences for men and women who commit similar crimes, which imposed draconian costs on families as well as on women who do not resemble the violent male drug dealers who inspired the severe federal drug penalties. Gender related differences concerning the impact of sentencing policy on children and on loss of parental rights by mothers are discussed. Booker's reasonableness analysis is analyzed as providing the flexibility to approve non-guidelines sentences based on gender-related factors. The practice of requiring judges to decide the appropriateness of discouraged downward departures before issuing non-guidelines sentences is critiqued as hindering more holistic sentencing of defendants.
The author also criticizes the guidelines discouragement of family ties departures, and argues that a completely gender-neutral sentencing scheme is bad policy because it has the potential of increasing intergenerational crime by ignoring the gendered realities of caregiving in our current society. A Guidelines amendment is proposed making children a legitimate departure factor in assessing the sentence of nonviolent sole and primary caretakers in light of constitutional and policy considerations viewing the family as a fundamental liberty interest....
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.
Eighth Circuit affirms another large upward variance
Continuing a pattern detailed in this post (and in an informative comment), the Eighth Circuit today has yet again affirmed a significant upward departure and variance in US vs. Porter, No. 05-2342 (8th Cir. Mar. 7, 2006) (available here). In Porter, the guideline range was 41-51 months, an upward departure took the range to 57-71 months, and the district judge ultimately imposed the statutory maximum of 120 months in a felon-in-possession case.
Disappointingly, the Porter opinion has three full pages explaining why the district court's upward departure was justified, but then only three sentences explaining why an additional "significant upward deviation" qualifies as reasonable. And, not surprisingly, there is no direct discussion of how a sentence far more than twice the original guideline range satisfies Congress's plain instruction in section 3553(a) of the SRA that a district judge impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).
The facts of Porter, which involve a serious state crime as well as the federal charge, make understandable why the district court desired (and the Eighth Circuit approved) to impose the maximum sentence permitted by law. But Porter serves as another example of how discretionary sentencing systems allow defendants to be sentenced for crimes beyond those that are the basis for conviction.
Federal executions stayed due to lethal injection concerns
Another chapter of the lethal injections scrummages is starting to play out in the federal system, where three executions were scheduled for this May. Here are highlights from this slightly confusing story from Indiana:
U.S. District Court Judge Ellen Segal Huvelle ordered a preliminary injunction Feb. 24, barring the Bureau of Prisons from executing James H. Roane Jr., Richard Tipton and Cory Johnson.
The three co-defendants had been scheduled to die in May at the Federal Correctional Complex in Terre Haute, home to the nation's federal death row. The trio were sentenced to die after being convicted in a string of drug-related murders in Richmond, Va....
In her ruling, Huvelle also stayed the three men's federal lawsuit on the constitutionality of lethal injections, pending a decision by the U.S. Supreme Court in a Florida case.... Separately, attorneys for Roane, Tipton and Johnson also are alleging in a federal lawsuit that lethal injection is cruel and unusual punishment. They filed the suit in December in the U.S. District Court for the District of Columbia.
Because it seems from this story that there is parallel litigation on the lethal injection issue, I am not entirely certain what the government's next step might be. I would suspect an appeal of Judge Huvelle's stay in the Seventh Circuit would be in order, though perhaps the Justice Department has little interest in pushing this issue until the Hill case is resolved in the Supreme Court.
Some recent related posts:
- The lethal injection debate rages on
- Back to the lethal injection scrum in Morales
- And the lethal injection litigation played on...
- Back to the lethal injection litigation
- More lethal injection scrummages
The USSC's work on immigration offenses
As detailed in this AP story, the US Sentencing Commission on Monday conducted another public hearings concerning its proposals to increase sentences for certain immigration offenses. The AP report notes that USSC members "questioned Monday whether their effort to stiffen penalties for immigration crimes would be rendered irrelevant or confusing by a parallel move in Congress."
The agenda and witnesses for Monday's hearing can be found here at the USSC's website, and background on the proposed changes can be found at pp. 7-26 of this document with all of this season's proposed guideline amendments. An interesting interim staff report outlining issues arising out of the USSC's work on immigration offenses is available here.
Sentencing provisions of South Dakota's new abortion ban
According to this CNN.com story, South Dakota's new law banning nearly all abortions provides that doctors who perform an abortion (except to save a woman's life) "can be charged with a felony punishable by up to five years in prison." This reference prompted me to check out the text of the new South Dakota law, which is known as the Women's Health and Human Life Protection Act and is available here. The law simply provides that any doctor performing an illegal abortion is guilty of "a Class 5 felony." A separate section, available here, sets forth South Dakota's sentences for different classes of felonies.
To get some perspective, I explored South Dakota's homicide offenses and discovered that the state's two degrees of murder, two degrees of manslaughter, and vehicular homicide are all graded more severely than a Class 5 felony. (Aiding a suicide, however, is a Class 6 felony.)
There seems to be relatively few Class 5 felonies in South Dakota. Based on a quick review of South Dakota's criminal laws, it appears that perjury under oath, promoting prostitution, forgery, distributing over an ounce of marijuana, and threatening a juror are all Class 5 felonies. Theft of a firearm and theft of over $1000 both qualify as more serious Class 4 felonies, along with rioting and vandalizing property worth over $1000 and tampering with a witness.
In short, South Dakota's new law to ban abortions, examined purely from a sentencing perspective, has some surprising company.
March 6, 2006
Intriguing CQ article on Sensenbrenner and mandatories
The March 3 edition of Congressional Quarterly Today (which is not available on-line) includes an intriguing article by Seth Stern entitled "Sensenbrenner Eases Off Mandatory Jail Time." As the title suggests, the article explores an apparent evolution in the sentencing attitude of F. James Sensenbrenner Jr., the powerful and important chair of the House Judiciary Committee. Here is the opening:
After Republicans on the House Judiciary Committee pushed strongly for mandatory minimum prison sentences for years, their ardor for that approach appears to be waning.
F. James Sensenbrenner Jr., chairman of the House Judiciary Committee, agreed to strip many of the mandatory minimum sentences aimed at curbing street gangs and violence against judges from legislation the House is likely to consider this week.
The Wisconsin Republican, who said he deleted the mandatory minimums language in order to get the package of bills through the Senate, is striking a more pragmatic note on the issue after years of confrontation with Senate and House Democrats over sentencing law.
Of course, the real proof will be in the Booker fix pudding. As my "Dead Booker walking?" series is meant to suggest (recently installments here and here), I suspect it is only a matter of time before the Justice Department suggests again that a legislative response to Booker is needed. How Sensenbrenner responds to any calls for a Booker fix will be the true test of whether a new sentencing day has dawned.
Fifth Circuit affirms significant upward criminal history departure
Following up some notable work late last week (details here), a split panel of the Fifth Circuit today in US vs. Zuniga-Peralta, No. 04-50575 (5th Cir. Mar. 6, 2006) (available here), affirms a significant upward departure in an illegal reentry case. The case is an interesting read, especially because Judge DeMoss in dissent asserts that "the case should be remanded to the district court for supplementation of the written order with specific reasons for the decision to upwardly depart." Judge DeMoss closes his dissent with this sentiment: "In the 'brave new world' of sentencing post-Booker, I would hope that sentencing judges would make a habit of giving written and specific factual reasons for any sentence above or below a properly calculated Guideline range."
California Supreme Court's constitutional concern with sex offender registration
With thank to How Appealing for the tip and this link to the opinion, I see that today the California Supreme Court ruled that the state's sex offender registration law has an equal protection problem. Here is the key conclusion of the opinion in People v. Hofsheier, No. S124636 (Cal. Mar 6, 2006):
We therefore conclude that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions. This conclusion does not preclude the Legislature from requiring lifetime registration both for persons convicted of voluntary oral copulation and for those convicted of voluntary sexual intercourse, thus treating both groups the same.
I will leave it to readers to explain to me whether this ruling should be considered a victory for "voluntary oral copulation" or a defeat for traditional "voluntary sexual intercourse."
UPDATE: How Appealing has the newspaper coverage of the Hofsheier ruling linked here.
Eighth Circuit vacates another below-guideline sentence
The Eighth Circuit, with a number of notable rulings today showing up on this official opinion page, continues its busy sentencing ways. Of today's rulings, US vs. Rivera, No. 05-2143 (8th Cir. Mar. 6, 2006) (available here), caught my eye because the Eighth Circuit yet again vacates another below-guideline sentence. As detailed in this post (and in an informative comment), the Eighth Circuit has a history of scrutinizing below-guideline sentences very closely.
Given the Eighth Circuit's history, perhaps what is most notable about Rivera is that the panel does not declare a sentence of 60 months (down from a guideline range of 188-235) to be unreasonable. Rather the Rivera court concludes that "on the record before us, we are unable to make a reasonableness determination and therefore reverse and remand for resentencing." And, based on the record as discussed by the Rivera court, this seems like a sound conclusion.
Notably, as detailed here, AG Alberto Gonzales when calling for a legislative "Booker fix" last summer expressed concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation." The Rivera decision, and others like it noted here and here, suggest that appellate review for reasonableness will ensure that district courts fully explain reasons why they believe a below-guideline sentence is appropriate.
Notable late week wins for defendants in the circuits
At the end of a long week, I missed three notable opinions from Friday in which circuit courts found in favor of defendants in their sentencing appeals. The opinions — US vs. Meraz-Enriquez, No. 04-40607 (5th Cir. Mar. 3, 2006) (available here), US vs. Luciano-Rodriguez, No. 04-41016 (5th Cir. Mar. 3, 2006) (available here), and US vs. Bah, No. 05-1863 (8th Cir. Mar. 3, 2006) (available here) — are notable not only because the defendants' prevailed, but also because of what gets said along the way.
The two Fifth Circuit decisions involve yet another set of debates over what constitutes a "crime of violence" within the meaning of section 2L1.2 of the guidelines. Luciano-Rodriguez is the must-read because of a long and thoughtful dissent by Judge Owen. The Eighth Circuit's decision in Bah likewise turns on a conclusion that the district court erred in calculating the applicable guideline range, although Judge Bye concurs to explain why he viewed the above-guideline sentence imposed to be unreasonable.
Fascinating Foster follow-up on Ohio sentencing reforms
I continue to be fascinated by reactions to the Ohio Supreme Court's recent big Blakely decision in Foster. Today the Cincinnati Enquirer, which had the best initial Foster coverage, has this fascinating follow-up article [Update: link fixed] that further examines the impact of Foster and the overall state of sentencing reform in Ohio. Here are some snippets from an article that is today's must-read for serious students of sentencing reform:
Ohio lawmakers set ambitious goals 10 years ago when they rewrote the rules on how criminals are sentenced to prison.... A decade later, many of those reforms are gone or are in jeopardy.... The result is a system that's confusing and unpopular. Judges complain that the system is needlessly complicated, offenders have challenged it in court, and prosecutors say it's soft on crime....
[J]udges praised the [Ohio] Supreme Court's [Foster] ruling last Monday, saying it will lead to tougher sentences. Defense lawyers say it made a bad situation worse. Differences aside, most agree the system remains flawed. "We've got to get back to fixing sentencing reform," state Rep. Bill Seitz, R-Green Township, said. "But it's not something you start on Monday and finish on Tuesday."...
David Diroll helped draft the reforms 10 years ago as executive director of the Ohio Criminal Sentencing Commission. He said the reforms took a hit from the Supreme Court but are still alive. He said judges could consider the guidelines as "advisory," in the same way federal judges now use similar guidelines.... Diroll said such an approach in Ohio would preserve one of the fundamental goals of sentencing reform: consistency. "We just have to see whether the judges stay within the basic norms, the constraints, or whether it's open season," Diroll said.
Legislators say they will likely revisit sentencing reform soon. They're just not sure how many changes they'll make.
Recent posts on Foster:
- Ohio applies Blakely and the Booker remedy!
- What is exactly the Blakely remedy in Ohio?
- Who wins from a Booker remedy? It depends.
- A prosecutor's view on Foster
- A sentencing judge's view on Foster
Of interest in the Monday morning papers
Another work week brings another set of interesting stories to read and follow:
- The Cherry Hill Courier Post has this interesting article discussing the efficacy of sex offender registration and notification laws.
- CBS News provides this helpful Q & A about the capital sentencing trial of Zacarias Moussaoui, which is due to get started today now that jury selection is complete. (For more background, check out pieces from USA Today and the AP.)
- Charles Lane at the Washington Post has this notable piece about the influence of clerks on the Supreme Court.
March 5, 2006
Dead Booker walking?: a "drift toward lesser sentences"
Recently updated statistics from the US Sentencing Commission (details here) inspires me to return to my "Dead Booker walking?" series. As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker. In this installment, I will focus on the concern expressed by AG Alberto Gonzales about "a drift toward lesser sentences" when he called for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here).
In my Editor's Observations in the latest FSR issue on the post-Booker world (details here), I noted that "the Sentencing Commission's post-Booker data reveal that average and median sentences in all major categories of crimes are virtually unchanged from pre-Booker levels." Indeed, what is most notable from a review of sentence length data (at pp. 13-15) in the latest post-Booker data report is that, from 2001 to pre-Blakely 2004, there was a significant drift toward higher sentences for all crimes and in all major categories of crime except immigration offenses.
Turning specifically to a comparison of pre-Blakely 2004 and post-Booker sentences, we do now see a one-month drop in the average sentence in all cases (from 56 to 55 months) and similar slight declines in immigration and firearm cases. However, average and median sentence length for these periods are identical in drug cases and there is a slight increase in theft/fraud cases. And, notably, in all categories except immigration, average and median sentences post-Booker are all significantly higher than they were as recently as FY 2002. Put simply, sentencing in the year after Booker has been as tough or tougher than sentencing in the years before Booker.
On this record, I have a hard time identifying a "drift toward lesser sentences," though one might point to the halting of a prior drift toward higher sentences as evidence of Booker's impact. Moreover, the Justice Department might reasonably be concerned that, if the current culture of guideline compliance starts to change, lower sentences may follow. However, given reasonableness review patterns — with all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, while nearly all below-guideline sentences are being reversed as unreasonable — DOJ has no reason to worry that the culture of guideline compliance will change any time soon.
Prior posts in this series:
Of interest around the blogosphere
A quick tour around the blogosphere reveals more than of few items of interest:
- Grits for Breakfast discusses here a capital case reversal where prosecutors improperly withheld a confession. Capital Defense Weekly has more on the case here.
- Crime & Federalism details here the perils of federal plea bargaining.
- White Collar Crime Prof Blog here compares the sentence of former Representative Randy Cunningham (details here) to those of other notable white-collar federal defendants.
- The WSJ Blog reports here on the distinctive sentencing of Michael Rigas for his relatively small role in the Adelphia frauds.
- 3L Epiphany continues to do fascinating meta-blogging (background here) with new posts on the word "blog" and on the use of "legal blog" or "blawg" and on specialty law blogs.
Sunday's interesting capital stories
Another day of Sunday papers brings another days with lots of capital sentencing stories. Below are some of the articles I found the most interesting:
- From the Shreveport Times here, "Women on death row"
- From the Oregonian here, "Lives extended on Death Row"
- From the Contra Costa Times here,"Respected jurist sits at center of execution delay"
- From the Sunday Times here, "Chinese city will execute purse thieves"
A look at the post-Booker world in Alabama
Today in the Mobile Register you can find two thoughtful articles exploring post-Booker sentencing in Alabama. The basic themes of the articles, available here and here, are clear from their headlines: "Judges hold back on newly won sentencing discretion" and "Mobile cases: Some judges deviated from sentencing guidelines, as Supreme Court now allows." Here are some sections from a very effective article:
[I]n the year since the Supreme Court's U.S. vs. Booker decision, judges in southwest Alabama and nationally have stuck to the old practices more than 90 percent of the time, according to statistics compiled by the U.S. Sentencing Commission.... [T]he federal court in Mobile has continued to operate largely as before [Booker]....
"The guidelines, themselves, are still pretty influential," said Ginny Granade, the chief judge of the federal court in Mobile. "You really, under current case law, need to have a pretty good reason not to follow the guidelines." For defense lawyers, that has proved frustrating. "The guidelines are very severe and harsh. They enjoy sending poor people to jail," said Robert "Cowboy Bob" Clark, a well-known Mobile lawyer. "Why do we have judges?"...
Some legal analysts have said that judges are hewing close to the recommended sentences because of uncertainty. Appellate courts have yet to define what constitutes a "reasonable" departure from the advisory guidelines. In the absence of clear direction, Clark said, judges find comfort in the guidelines. Following them reduces the chances that their decisions will be overturned, he said.
But in a sentiment echoed by many, Clark said he believes judges will feel more free to ignore the guidelines as time wears on. "The longer we get away from (the Booker decision), the guidelines are going to be dead," he said. Even judges, themselves, said they think that might happen in time. "I think the further we go, the guidelines will seem to be advisory," said [District Judge William] Steele.... But Steele added that the guidelines remain a useful tool for judges. "I don't think we'll ever get away from the guidelines. And I do think they are important, because they do have this structure."...
Judges' willingness to set aside the guidelines in at least some cases has prompted some lawyers to shift strategy. Under the guideline system, lawyers rarely put on character witnesses during sentencing hearings because judges largely could not consider such testimony. Dennis Knizley said he put on several such witnesses for a pair of child pornography defendants in the past year. "In the past, I would have never done this," he said. Federal Defender Carlos Williams predicted that as lawyers become more adept at setting their clients apart from other defendants, judges will use sentencing discretion more often. "The defense has to be become better at explaining why," said Williams, who represents defendants who cannot afford lawyers.