June 19, 2006
Around the blogosphere
In addition to some of the fascinating commentary over at SCOTUSblog on Monday's Supreme Court action, readers might want to check out:
- The First Circuit Federal Defender Blog's effective post on Booker Reasonableness in the First Circuit.
- An analysis of the Samson parollee Fourth Amendment case from SCOTUS today (background here) offered at A Stitch in Haste and SCOTUSblog.
- The DPIC's interesting set of resources to commemorate the 30th anniversary of the Supreme Court's Gregg decision, which essentially marks the start of the modern death penalty era.
Publish and perish (at sentencing)
The Second Circuit today in US v. Kane, No. 05-2714 (2d Cir. June 19, 2006) (available here), has an interesting discussion of proper sentencing considerations in the course of rejecting the defendant's claim that his First Amendment rights were violated when the district court considered the defendant's (peculiar) published writings to undercut the mitigating character evidence the defendant offered. The Kane opinion also briefly discusses jurisdiction and reasonableness in the course of affirming a below-guideline sentence over the defendant's objections.
The Second Circuit Sentencing Blog has more on Kane here.
Interesting mandatory minimum opinion from the Third Circuit
The Third Circuit today has an interesting opinion today in US v. McKoy, No. 05-2461 (3d Cir. June 19, 2006) (available here), on the application of mandatory minimums and the impact of juvenile convictions. The start of the opinion and the court's review of the defendant's arguments provide a useful summary:
Ricardo McKoy appeals from the District Court's order sentencing him to the ten-year statutory minimum for conspiracy to distribute and possess with intent to distribute crack cocaine. He contends that the District Court erred in failing to sentence him below the statutory minimum pursuant to 18 U.S.C. § 3553(f). We affirm....
Mr. McKoy argues that the District Court incorrectly treated his juvenile court dispositions as "sentences" for purposes of calculating his criminal history points. He also contends that under New Jersey law, his juvenile dispositions were "diversions," which are excluded from the criminal history calculation pursuant to U.S.S.G. § 4A1.2(f). Finally, he argues that the District Court erred in concluding that it did not have the discretion, under United States v. Booker, 543 U.S. 220 (2005), to impose a sentence below the statutory minimum.
Eighth Circuit gives cursory attention to burdens of proof (and also affirms another above-guideline sentence)
As highlighted by this list, the Eighth Circuit's affirmance today of yet another above-guideline sentence in US v. Lyons, No. 05-2416 (8th Cir. June 19, 2006) (available here), is hardly news. Somewhat more newsworthy is the Eighth Circuit cursory discussion of burdens of proof in US v. Johnson, No. 06-1056 (8th Cir. June 19, 2006) (available here).
As noted in the posts linked below, a few other circuits have recently given quite thoughtful and extensive consideration to the argument that some guideline enhancements after Booker call for finding under a heightened burden of proof. (The Third Circuit in Grier devoted 68 pages to this issue in a split ruling, and the Ninth Circuit needed 19 pages for its unanimous Staten ruling.) But as demonstrated by the paragraph below, a single sentence apparently suffices to address this important issue in the Eighth Circuit:
Johnson asserts that the sentencing enhancements violated his due process rights and that the proper standard of proof should be beyond a reasonable doubt. Alternatively, he requests that we at least adopt a clear and convincing standard in cases in which enhancements have a "disproportionate impact on the sentence." It is clearly established in this circuit that sentencing enhancements must be proven by a preponderance of the evidence, however. United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir. 2006) (citing United States v. Pirani, 406 F.3d 543, 551 n. 4 (8th Cir. 2005) (en banc)).
Critically, neither Garcia-Gonon nor Pirani addressed Johnson's alternative argument to apply clear-and-convincing standard to some enhancements (which is the approach recently reaffirmed in the Ninth Circuit in Staten). Apparently, the application of a civil burden of proof for even contested issues having a disproportionate impact on the sentence does not give the Eighth Circuit panel even a moment's pause.
Related posts on burdens of proof:
- Major Third Circuit ruling on post-Booker burden of proof
- More on Grier and the post-Booker burden of proof
- Ninth Circuit adds nuance to post-Booker burdens of proof
- A post-Booker burden of proof primer
Another intriguing SCOTUS morning
Based on reports from SCOTUSblog, today's civil work by the Supreme Court seems likely to graner the most attention. And, we still do not get decisions in the four Blakely-tinged cases noted here that I am most anxiously awaiting. Thursday appears to be the next day we will get rulings from SCOTUS.
There was criminal law action still worth noting today. As more fully detailed by fellow bloggers here and here, the Supreme Court: (1) handed down split decisions in its two big Crawford cases, (2) ruled on parolee Fourth Amendment rights in Samson v. California, and (3) issued a per curiam GVR in a criminal case that essentially ordered the West Virginia Supreme Court to consider a Brady issue. Of this bunch, I suspect Samson might have the most sentencing talk, but I encourage readers to use the comments to highlight any matters of interest in today's SCOTUS action.
UPDATE: Samson is an interesting read, especially given modern "war on terror" debates about the Fourth Amendment (which are unspoken in the Samson opinions). Justice Stevens' dissent in Samson seems notably strident. At the outset, he assert that the majority "sanctions today ... an unprecedented curtailment of liberty"; at the close, he suggests the Court has reduced the Framers chosen "guard against the evils of arbitrary action, caprice, and harassment." Intriguingly, Justices Souter and Breyer, but not Justice Ginsburg, joined Stevens' dissent.
Another astute review of Rattoballi
The Second Circuit Sentencing Blog in this lengthy post provides an insightful and critical assessment of the Second Circuit's discussion of reasonable review in its recent Rattoballi ruling (discussed here and here). Recall that here the Second Circuit Blog has also spotlighted ratty aspects of Rattoballi. Here are snippets from the latest commentary:
Reading sentencing decisions from the Second Circuit these days is a lot like dating a girl who maybe-sort-of-just-might-like-you — you get very mixed messages. And, in light of the Second Circuit's prior decisions in United States v. Crosby, 397 F.3d 103 (2d Cir. 2006) and United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006), Rattoballi sends just such a mixed message....
The only reconciliation of these three decisions that I have thus far been able to make is really no reconciliation at all. Rather, it is a recognition that different panels of the Second Circuit have reached different conclusions — Crosby (Circuit Judges Newman, Kearse and Cabranes), Fernandez (Circuit Judges Miner and Cabranes and District Judge Curtin) and Rattoballi (Chief Judge Walker and Circuit Judges Winter and Jacobs). If so (and as suggested by the Second Circuit Blog) an en banc hearing on Rattoballi may be required to achieve some stability in sentencing law in the Second Circuit.
More big SCOTUS crimnal law doings this week?
Last Monday brought a lot of fascinating sentencing developments from the Supreme Court (basics here, commentary linked here), and I am gearing up for another big decision day. We are still awaiting decisions in the four Blakely-tinged cases noted here, and there are a half dozen other major criminal law cases still on the SCOTUS docket.
Since this month has already been marked by SCOTUS sentencing surprises — a cert grant in Burton on Blakely retroactivity (basics here, commentary here), sparring over the fate of the prior conviction exception (details here) — I wonder what might be in store for this week.
June 18, 2006
A state sentencing conference not to be missed
I have just received the brochure and tentative agenda for the National Association of Sentencing Commissions (NASC) 2006 Annual Conference, which is scheduled for early August in Philadelphia. NASC is a fascinating group that brings together many state and federal sentencing "insiders" to focus on state sentencing issues while also keeping an eye on the federal experience. This year, the NASC Annual Conference is entitled "Keystone of Sentencing: Balancing Fairness and Cost." A quick look at the agenda (which can be downloaded below) shows that this conference will have something for every sentencing interest.
More on reasonableness in the Second Circuit
The Second Circuit's work last week reversing as unreasonable a below-guideline sentence in Rattoballi (discussed here), is discussed at length in this New York Law Journal article. The article indicates that Rattoballi decision "is one of the first, if not the first, where the 2nd U.S. Circuit Court of Appeals has found that a substantial deviation from the recommended guidelines sentence must be reversed because it was unreasonable."
Providing a notable contrast, the Second Circuit Sentencing Blog here notes the Second Circuit's (unpublished) decision in US v. Orlandez-Gamboa, No. 05-2777 (2d Cir. June 13, 2006) (available here), affirming an above-guideline sentence that was 75 months higher than the top of the defendant's guidelines range. Also, this recent NYLJ article about above-guideline sentences reminded me of the Second Circuit's (unpublished) decision in US v. Harrison, No. 05-4350 (2d Cir. March 29, 2006) (discussed here) that also found a significant above-guideline sentence reasonable.