March 25, 2006
Fuzzy fast-track logic from the Seventh Circuit
On Thursday of last week, the Seventh Circuit in Martinez-Martinez rejected a defendant's claim that a within-guideline sentence was unreasonable because a reduction was not afforded to account for disparity that might result from fast-track programs in other districts. As I noted in this post, however, the court did not address explicitly whether a departure or variance based on fast-track disparity concerns would be unreasonable.
On Friday, however, in an unpublished ruling in US v. Galicia-Cardenas, No. 05-3093 (7th Cir. Mar. 24, 2006) (available here), the Seventh Circuit does address the flip side of Martinez-Martinez by reversing a variance based on fast-track disparity. Here's what the Seventh Circuit says:
In a decision issued yesterday, United States v. Martinez-Martinez, we rejected a claim that the defendant's 41-month sentence (the low end of the advisory guideline range) was unreasonable because Indiana does not have a fast-track program. We went on to observe, "Given Congress' explicit recognition that fast-track procedures would cause discrepancies, we cannot say that a sentence is unreasonable simply because it was imposed in a district that does not employ an early disposition program." By the same logic, we cannot say that a sentence imposed after a downward departure is by itself reasonable because a district does not have a fast-track program. Because Martinez controls these cases, we must ... vacate the sentence Mr. Galicia-Cardenas received. Mr. Galicia-Cardenas must be resentenced without a credit for Wisconsin's lack of a fast-track program. Whether he deserves a sentence below the advisory guideline range based on other factors is left to the discretion of the district court.
I think the Seventh Circuit's reasonableness logic is a bit fuzzy here. In my view, a circuit court could find it reasonable for one district judge to decide, in his discretion, not to adjust a sentence based on fast-track disparities and still also find it reasonable for another judge to decide, in his discretion, to adjust a sentence based on fast-track disparities. After all, prosecutors clearly exercise their discretion to apply fast-track programs in varying ways. In addition, it is clear that a district judge does not always have to depart or vary even when he possesses authority to do so and that does not necessarily make different departure/variance decisions unreasonable. Put another way, I do not view reasonableness as a binary concept, though this unpublished ruling concerning fast-track considerations treats it as such.
Another assessment of the post-Booker world
The Drug War Chronicle has this recent article reviewing the state of the post-Booker world, which discusses both the recent USSC report and House hearing about post-Booker sentencing (background here). The piece mostly reflects a defense perspective on these issues, and here is how it begins:
Fourteen months ago, the US Supreme Court upset the federal sentencing apple cart when it ruled in US v. Booker that the sentencing guideline scheme in place for nearly two decades unconstitutionally allowed judges to sentence defendants based on facts not heard by a jury. As a remedy, the Supreme Court held the guidelines could no longer be mandatory, but only advisory. While some sentencing reform advocates hoped that more humane drug sentences would result, and conservative congressmen and the Justice Department worried that somebody somewhere would not do enough prison time, after a year of post-Booker sentencing, little has changed.
March 24, 2006
USSC releases updated steriod report
Just in time for my fantasy baseball draft this weekend, the US Sentencing Commission has released its 2006 Steroids Report. Coincidence? Available at this link, here is how the document is described on the USSC website:
Prepared by the Steroids Working Group of the United States Sentencing Commission, this report sets forth legislative and guideline history pertaining to steroids offenses, discusses the Commission’s response to legislation, and updates the findings in the Commission’s 1990 Steroids Report.
Remarkable district court work on substantial assistance
In a remarkable (and long) opinion in US v Saenz, No. CR 03-4089 (N.D. Iowa Mar. 23, 2006) (available for download below), US District Judge Mark Bennett has sought to rebut concerns expressed by the Eighth Circuit about the extent of substantial assistance departures Judge Bennett has recently granted. The opinion in Saenz, which draws thoughtfully and heavily on the USSC's post-Booker data reports, is an absolute must-read for everyone working in the federal sentencing trenches (and for everyone else, as well). These opening paragraphs provide a taste of what following in the subsequent 48 pages:
With some notable exceptions, the Eighth Circuit Court of Appeals has recently reversed and remanded several of my sentencing decisions on the ground that my downward departures in excess of 50 percent for "substantial assistance" pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) were "unreasonable" and "excessive." This case represents one such reversal and is now before me on remand for resentencing. With all due respect, I write to express my profound disagreement with the Circuit Court's rationale for this string of reversals. As a United States District Court Judge, I do recognize that I must faithfully and unflinchingly follow Circuit law, even when I disagree with it — as I do here. This is equally true whether the Circuit Court's rationale is newly-minted, as I believe it is here, or based on long-standing, rock solid precedent, as it sometimes is in other contexts. I write this opinion expressing my specific disagreement with the Circuit Court's position concerning the proper extent of substantial assistance downward departures on legal grounds as well as on the factual basis of data recently compiled by the United States Sentencing Commission to which the Circuit Court did not have access at the time that it reversed and remanded this and other cases in this string of reversals.
My major point of contention with this string of reversals is the notion expressed by the Circuit Court in some of its decisions that a 50 percent reduction for substantial assistance is "extraordinary." There is, in my view, no basis for such a benchmark in federal statutory law, federal common law, the United States Sentencing Guidelines themselves, the realities of federal sentencing, or basic concepts of fairness, mercy, and justice. Indeed, recent data compiled by the United States Sentencing Commission demonstrate that labeling a 50 percent reduction for substantial assistance "extraordinary" is at odds with the facts and so deeply troubling that the Circuit Court should reevaluate its position.
UPDATE: A reader reported trouble with the Saenz file, but helpfully noted that the Saenz opinion can now be accessed at this link.
March 24, 2006 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack
Fourth Circuit reverses another below-guideline sentence
Continuing what is now a well-established reasonableness review pattern, the Fourth Circuit Thursday reversed a below-guideline sentence in US v. Hampton, No. 05-4224 (4th Cir. Mar. 23, 2006) (available here). The panel's decision in Hampton and a brief concurrence by Judge Motz merit a close read for a view on reasonableness in the Fourth Circuit. Here is the money paragraph of the majority opinion:
In order to withstand reasonableness scrutiny, such a dramatic variance from the advisory guideline range must be supported by compelling justifications related to § 3553(a) factors, and "excessive weight" may not be given to any single factor. The sentence at issue here fails in both of these respects. First, although the district court briefly mentioned two § 3553(a) factors — deterrence and protection of the public — in setting forth the variance sentence, the court never explained how the sentence imposed — probation — served these interests. Furthermore, the court did not explain how this variance sentence better served the competing interests of § 3553(a) than the guidelines sentence would.
Important drug-free zone report
The Justice Policy Institute has released an important new report, entitled "Disparity by Design: How drug-free zone laws impact racial disparity — and fail to protect youth," which contends that drug-free zones fail to reduce drug sales and aggravate racial disparities in sentencing. The full report can be accessed at this link, and the Drug Policy Alliance here has a brief summary of its contents. The report has appropriately generated media coverage such as this AP article and this USA Today article. Here is a snippet from the report's conclusion:
A substantial body of evidence from research and policy studies indicates that drug-free zone laws, as they are typically configured, are not effective in reducing the sale or use of drugs, or in protecting school children — and the role these laws play to increase unwarranted racial disparity is well documented. The case studies detailed in this report demonstrate that policymakers in jurisdictions from coast to coast are moving to reform or replace drug-free zone laws with more effective measures.
Life in the fast-track lane
A couple of recent circuit rulings have discussed fast-track and disparity issues post-Booker. On Thursday, the Seventh Circuit in US v. Martinez-Martinez, No. 05-2713 (7th Cir. Mar. 23, 2006) (available here), rejected a defendant's claim that fast-track disparities made a within-guideline sentence unreasonable. The ruling in Martinez-Martinez hints, by citing some First Circuit dicta, that a departure or variance based on fast-track disparity might be unreasonable, but this important issue is ultimately left unresolved.
Similarly, as covered here at the Second Circuit Sentencing Blog, the Second Circuit has recently flirted with this issue. In US v. Urena, No. 05-2343 (2d Cir. Mar. 22, 2006) (available here), the court in a summary order flags, but does not resolve, "whether a sentencing court can, should, or must consider the wide-spread use of fast-track programs as a factor relevant to an individual defendant's sentence."
March 23, 2006
Interesting paper on sex offenders
A helpful reader has pointed me to this interesting new paper from the Center for Community Alternatives entitled "Responding to Sexual Offenses: Research, Reason and Public Safety." The paper discusses research on evidence-based practice dealing with sex offenders and calls for a more nuanced and less categorical approach to initiatives like residence restrictions and registration requirements. Here are the opening paragraphs:
There is likely no criminal behavior that breeds as much condemnation and fear as sex offending. There are tragic examples of young victims of sex offenders in New York State and across the country that have raised our concerns, and prompted calls for increased surveillance, control and incapacitation. It is responsible public policy to address these concerns in ways that will increase public protection that are based on research and evidence. An evidence-based approach ensures that we will sequester only those who are likely to reoffend by committing serious, violent sexual offenses and affording treatment and effective supervision for those who do not fall into this category.
To date, much of the debate about sex offenders has been driven by the most horrific and heinous crimes that contribute to the myth that nothing works. This ignores a growing body of research that documents what works, for whom and in what setting and context. This policy alert calls attention to some of the literature, and urges that new legislation on sex offenders, both criminal and civil penalties, be guided by this research and further expert consultation. We briefly address three key areas: assessment of people who commit sex offenses, the efficacy of treatment — what works for whom, and the use and misuse of civil commitment. Finally, we draw upon lessons learned from the past and New York's experience with legislation that was driven by fear and political rhetoric — the Rockefeller drug laws.
Ninth Circuit on reasonableness review
The Ninth Circuit on Wednesday provided some insights into its approach to reasonableness review with its decision in US v. Rodriguez-Rodriguez, No. 05-50202 (9th Cir. Mar. 22, 2006) (available here). Though the panel finds a within-guideline sentence reasonable, the decision makes no reference to any sort of presumption of reasonableness and it stresses the parsimony provision of 3553(a). Here is a taste of the court's conclusion:
Considering the factors listed in § 3553(a), such as Rodriguez-Rodriguez's criminal history, the likelihood that he would attempt re-entry and the sentence calculated under the guidelines, the district court determined that a sentence of 77 months was "sufficient but no greater than necessary" to fulfill the goals of § 3553(a)(2). The district court did not act unreasonably in imposing the sentence.
March 22, 2006
Spring break and priorities
To prove that I still have my priorities straight, I am soon heading to the airport to start my Spring Break trip down to Florida for a very long weekend of family and fantasy baseball fun. Saturday is my fantasy baseball league's draft in Tampa. Recommendations for sleepers and/or great keeper prospects would be greatly appreciated. Also, hoping to change my recent fortunes (I've not won in five years), I am thinking about changing my team name this year. Ideas for clever new team names would also be welcome.
Though I expect to be able to get on-line from my hotel, I also expect blogging to be very light through the middle of next week. For those interested in using this blogging breather to catch up on recent happenings, I have recapped some of March's Booker and Blakely highlights below.
MAJOR BOOKER FIX DEVELOPMENTS AND COMMENTARY
- The USSC Booker report is back (with corrections)
- Initial reflections on the USSC Booker report
- A viewer's guide to Booker House hearing
- Following the standard script at House hearing
- Reviewing a week dominated by Booker talk
MAJOR BOOKER DECISIONS AND COMMENTARY
- Judge Presnell on crack/powder disparity
- Eighth Circuit affirms another lengthy sentence for an uncharged murder
- Eighth Circuit reverses another below-guideline sentence BUT also finds a within-guideline sentence unreasonable
- First Circuit speaks, en banc, on post-Booker sentencing and review
- Reasonableness review round-up . . . calling Justice Scalia
MAJOR STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Ohio applies Blakely and the Booker remedy!
- En banc Pennsylvania court upholds state sentencing scheme over Blakely challenge
- Arizona Supreme Court addresses "admissions" for Apprendi/Blakely purposes
- Minnesota urging SCOTUS to embrace offense-offender Blakely distinction
- Opposition to cert petition urging offense-offender Blakely distinction
Eleventh Circuit affirms significant upward variance
This morning in US v. Eldick, No. 05-13006 (11th Cir. Mar. 22, 2006) (available here), the Eleventh Circuit has affirmed a 15-year sentence, the statutory maximum based on the charges of conviction, up from an applicable guideline range of roughly 7 to 9 years. Based on the facts of the case, the Eldick court's conclusions about reasonableness seem reasonable. However, the case provides another example, documented here and here earlier this month, of the circuit courts' tendency to find nearly all above-guidelines sentences reasonable, even though many below-guideline sentences are being reversed as unreasonable.
The financial underbelly of local sentencing
We all know money makes the world go round, and this fascinating piece from a local Ohio paper highlights that this applies to the sentencing world. The article, headlined "Inmate tug of war: Local vs. federal," explains how a local county make money for giving local jail space to federal immigration prisoners, which in turn has prompted country commissioners to encourage local judges to look for alternatives to jail time for local offenders:
In 2005, [federal immigration] ICE prisoners brought the county an estimated $809,823, Gibson said. Each ICE prisoner brings in $55 a day. [County Commissioner Dave] Sauber and fellow Commissioner Ben Nutter see the local vs. ICE prisoner population as a balancing act with financial implications. "It is a delicate balance," Nutter said. "We look at things from a financial perspective where the judges are charged at looking at it from a safety/enforcement angle. We are trying to balance both of those."
Nutter and Sauber said they cannot tell judges how many people they can place into the jail. "We would like to see (the jail house) all ICE prisoners because we are receiving payment for that," Sauber said. "We cannot tell or even ask the judges not to sentence. What we can do is try to build the expansion to keep within the guidelines of state." Sauber said the judges have shown an effort in relieving some of the population issues by working with the jail administrator and other county officials.
Tiffin Municipal Judge Mark Repp has been the recipient of county criticism on several occasions due to the increasing local prisoner populations. "The sheriff and commissioners are only looking at it from their personal end," Repp said. "My obligation is to follow the law and to look out for the interest of the community as a whole. Sometimes that means that justice is going to cost some money."
Repp, and other local judges, use several options to decrease the number of inmates imprisoned. Such options have included: house arrest, work crews, good time - when time sentences are decreased for work days completed - and electronic monitoring. Most recently, Seneca County Deputy Dave Magers suggested a community-release program in which prisoners could work on community projects in lieu of time served under a person who is not a deputy, such as someone from the Seneca County Maintenance Department....
Depending on the crime, Repp said he sentences multiple offenses with driving suspensions and many first-time offenders with no jail time. He said he also uses house arrest and electronic monitoring as well as the work release program. "I try to grant that liberally," Repp said about work-release.
March 21, 2006
Around the blogosphere
A number of interesting blogosphere items merit a spotlight tonight:
- TalkLeft here praises the town of Covington, Kentucky for rejecting a bill that would limit sex offenders from living there.
- White Collar Crime Prof Blog here comments thoughtfully on the white-collar sentencing aspects of the USSC's Booker report.
- Criminal Appeal here discusses a "prior conviction" exception case argued before the California Supreme Court.
- Back at TalkLeft here is an extended discussion of the on-going military sentencing hearing for the Abu Ghraib "dog handler."
Fourth Circuit gives Booker plain error a new twist
There have not been many blockbuster Booker rulings from the circuit courts lately, but the Fourth Circuit gave a new twist to its Hughes approach to plain error today in US v. Smith, No. 03-4892 (4th Cir. Mar. 21, 2006) (available here). In Smith, a divided panel relies on the fourth prong of plain error analysis to refuse a request for resentencing by one defendant. The dissent correctly spots what makes this development noteworthy in the Fourth Circuit:
This case is the first post-Hughes case in which the Fourth Circuit has applied Hughes, held that a Booker Sixth Amendment violation took place, recognized that the record fails to reflect what Moore's sentence would have been under an advisory scheme, yet declined to exercise its discretion to notice the error, vacate the illegal sentence, and remand for resentencing. Although declining to notice a Booker Sixth Amendment violation is not uncommon in those circuit courts that have adopted a different approach to analyzing plain-error issues arising from such Booker Sixth Amendment violations raised for the first time on direct appeal, the result in this case is materially inconsistent with Hughes and its progeny.
The Fourth Circuit Blog has more about this ruling here.
Terrific article on the pardon power
Margaret Colgate Love, who served seven years as US Pardon Attorney under the first President Bush and President Clinton, has a fantastic article concerning the history and present state of the pardon power in the most recent issue of the ABA's Litigation magazine. The article, entitled "Reviving the Benign Prerogative of Pardoning" and available for download below, is an absolute must read for anyone interested in pardon law and policy. Here is a snippet:
Surely pardoning should rank among the happiest of sovereign duties — though it can also be among the most difficult when a life is at stake or public opinion is inflamed. And there is a compelling present need for pardon because the criminal justice system has never been more harsh and unforgiving. Aggressive prosecution strategies and mandatory sentencing have filled our prisons to the bursting point and tagged more than 13 million of our fellow citizens with lingering collateral disabilities and the stigma of a criminal record. Evidently Justice Anthony Kennedy thought so when he called on the American Bar Association in August of 2003 to "consider a recommendation to reinvigorate the pardon process at the state and federal levels" — and evidently so did the ABA House of Delegates when it urged states and the federal government the following year to "expand the use of executive clemency."
If pardoning is so gratifying to the giver and so necessary to the system, why is there so little of it going on? Why do governors and presidents act as if they no longer have the same freedom to pardon that their predecessors had? How can we make them understand that, if pardoning was unacceptably dangerous a few years ago, it is now safe to go back in the water? To get the answers, we need to look at the history and practice of pardoning in the United States.
Related recent posts on pardons and clemency:
Why do we worry so much more about sex offenders than drunk drivers?
Stories this week from my local paper have me wondering again about why so much more attention is paid to sex offender sentencing than to sentencing for drunk drivers. As detailed in this Columbus Dispatch story, "Flurry of bills deals with sex offenders," the "issue du jour in the Ohio legislature" is sentencing in sex crime cases:
Mandatory prison time, longer sentences, pink license plates, electronic monitoring, mental-institution referrals, residency restrictions — since the session started in January 2005, lawmakers from both parties have introduced 23 bills dealing with sex offenders.
And yet, as detailed in this recent Dispatch story, "Repeat DUI offenders skirt law, still driving," undue leniency seems to be a much bigger problem for drunk driving offenses:
Ohio toughened its law against repeat drunken drivers two years ago, yet more than 35,000 of them still sit behind the wheel. Columbus prosecutors sometimes lie to the state about motorists who refuse to take Breathalyzer tests, resulting in shorter license suspensions....
In Ohio, 40 percent of traffic fatalities are alcohol-related, and drunken driving is the top killer of people ages 6 to 33, according to Mothers Against Drunk Driving.... Yet, only a trickle of new felony charges for repeat offenders have been filed since Ohio strengthened the DUI law in 2004....
Ohio has 35,825 motorists with four or more drunken-driving convictions, according to the state Bureau of Motor Vehicles. However, only 52 people have been indicted for felony drunken driving in Franklin County the past two years, according to Common Pleas Court records. The State Highway Patrol, which cites 25,000 drunken drivers a year, has filed only 359 felony DUI charges statewide since the law took effect.
And this Dispatch story today, entitled "Death of boy in DUI case shakes Amish community," highlights that the impact of drunk driving can be every bit as devastating as sex offenses.
Opposition to cert petition urging offense-offender Blakely distinction
As detailed in this post, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court in Minnesota v. Allen that Blakely should be "limited to facts related to the offense itself." I have an affinity for this argument because, as I have explained in recent articles, I think the Sixth Amendment should be interpreted to distinguish between offense conduct and offender characteristics. But, because this offense-offender distinction has never been embraced by SCOTUS, I recognize that this approach to Blakely would mark something of a shift in the Court's approach to these issues (although it would conceptually justify the otherwise questionable "prior conviction" exception).
The defendant's brief in opposition to cert in Allen (which can be downloaded below) makes a strong argument that an offense-offender approach to the Sixth Amendment would mark a significant change in the Court's jurisprudence. Here is the opening of the effective brief in opposition in Allen:
The petition should be denied for at least three reasons: first, there is no split of lower-court authority for the Court to resolve on the issue on which petitioner seeks certiorari; second, the rule proposed by petitioner would run afoul of years of Supreme Court precedent; and third, this case is not the proper vehicle for addressing petitioner's concerns.
Some related posts:
Notable sentencings of public officials
The papers this morning provide interesting reports of notable federal sentencings of public officials:
- From California, this story details that a former mayor was "to more than 15 years in federal prison for corruption in a scheme to steer no-bid city contracts worth hundreds of thousands of dollars to a consulting firm he secretly owned." White Collar Crime Prof Blog has more here.
- From Illinois, this story details the sentencing of a former police officer in which his "exemplary record prior to his conviction for obstruction and perjury" resulted in a below-guidelines sentence of "33 months in prison."
March 20, 2006
Another example of uncharged sentencing enhancements
Earlier today I discussed here the remarkable Eighth Circuit decision in Rashaw, in which the defendant, convicted at trial of illegal possession of firearms, received 30 years for uncharged murders. A Florida case involving alien smuggling that is not quite as extreme, but raises similar issues, is making headlines today. As detailed in stories here and here, a "federal judge on Monday imposed the harshest possible sentence on two men whose effort to smuggle Cubans into the United States last year ended in the drowning of a young boy."
This Miami Herald account of the sentencing details the import and impact of uncharged crimes in this case:
A lawyer for both Alexander Gil Rodriguez, 25, and Luis Manuel Taboada-Cabrera, 28, whose relatives sobbed outside the courtroom, said they will appeal the judge's sentences [of the maximum 10 years] for their alien-smuggling convictions. Attorney Steven Amster said the two Miami men, who were not charged or convicted of causing the death of 6-year-old Julian Villasuso, still faced up to the maximum prison term because his drowning was a factor in the judge's sentencing under advisory guidelines. ''They understand their actions led to this death,'' Amster said, acknowledging the two men sped off in their go-fast boat when the U.S. Coast Guard tried to stop them. "But their actions were not so egregious to go above what the sentencing guidelines say.''
The two men had reached plea deals in November, expecting to receive lighter sentences. They pleaded guilty to a conspiracy to smuggle 29 Cubans in a 33-foot speedboat that overturned and claimed the life of the boy, who got trapped beneath the capsized vessel. But Assistant U.S. Attorney Dana Washington said he didn't have enough evidence to charge them with the death of Julian Villasuso.
The boy's death was factored into the sentencing guidelines, doubling the initially proposed prison term from three to six years. But Moore, who as a federal judge has the authority to go higher than those advisory guidelines, didn't believe that penalty was sufficient.
The USSC Booker report is back (with corrections)
As I noted here late Friday, the US Sentencing Commission's 277-page Booker report released last week (discussed here and here) went missing from the USSC website so that the Commission could do one last check for any typographical, technical, or computational errors. I am pleased to report that the Booker report is now back on the USSC website, and it appears to be bigger and better than ever.
Specifically, the Booker report is now titled "Final Report on the Impact of United States v. Booker on Federal Sentencing" and it now runs a full 338 pages(!!) at this link. In addition, this errata note explains that there have been some corrections. Here is how the errata sheet begins:
On March 13, 2006, the Sentencing Commission released on its website an electronic version of its report on the impact of United States v. Booker on Federal sentencing. This report endeavors to provide sentencing data in a format relevant and meaningful to post-Booker analysis and therefore reports data outside of the Commission's customary fiscal year reporting practices. In the process of finalizing the report for printing, three programming errors were identified that required correction of certain data.
The most notable correction/change seems to concern the within-guideline sentencing rate after the PROTECT Act and before Booker: "As a result [of a programming error], for the post-PROTECT Act time period, the preliminary report understated the percent of cases sentenced within and above the applicable guideline sentencing range, and overstated the percentage of cases sentenced below the applicable guideline sentencing range."
UPDATE: An eagle-eye reader has now discovered that, as of Tuesday morning, the Final Booker report from the USSC at this link is back down to its original size of a svelte 277 pages. I do not know exactly what accounts for the miraculous slimming overnight, but perhaps the extra 60 pages that appear late on Monday was all water weight.