December 7, 2006
First Circuit rejects application of Sixth Amendment to mandatory restitution
Formally joining other circuits in limiting the reach of Blakely and Booker, the First Circuit in US v. Milkiewicz, No. 06-1192 (1st Cir. Dec. 6, 2006) (available here) Wednesday held that "like all of the other circuits to consider this question, we conclude that Booker and its antecedents do not bar judges from finding the facts necessary to impose a restitution order." (As Milkiewicz highlights, though there is consensus on this conclusion, there this is a circuit split on the rationale.)
Notably, the panel in Milkiewicz concedes that a "literal application of the Supreme Court's language might suggest" that the defendant has broader constitutional rights in this setting. But apparently lower courts these days all feel it is appropriate to reject a "literal application of the Supreme Court's language" when that might provide defendants with greater procedural protections in the criminal justice system.
December 6, 2006
Latest Booker stats from the USSC
I am pleased to discover that, over at the USSC's Booker page, one can now find the latest "Quarterly Sentencing Update." Available at this link, this data update provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2006. The numbers are prepared using data sentenced by close-of-business on September 30, 2006 and received, coded, and edited by the Commission by November 27, 2006."
The timing is great for me, because I now have to go into a faculty meeting in which a USSC data report will seem interesting. Late tonight I hope to provide some commentary on what this latest data might show, but for now I'll just link below to some of my prior data commentaries:
Recent posts on past Booker data and related issues:
- Please feed the data junkies, USSC
- Latest USSC data: "traditional" departures making a comeback
- A new (and new type of) data report from the USSC
- Key questions for USSC: Now what...?
So many goodies around the blogosphere
I am a bit overwhelmed by all the notable reading I see around the blogosphere, so I will just plug those blogs that have multiple posts related to sentencing worth checking out:
- Capital Defense Weekly
- Crime and Consequences
- Corrections Sentencing
- Fourth Circuit Blog
- Ohio Death Penalty Information
- Sex Crimes
The joys of loss calculations
Anyone who enjoys federal guideline minutiae should be sure to check out today's work by the Eleventh Circuit in US v. Cedeno, No. 05-16616 (11th Cir. Dec. 6, 2006) (available here). Here is the introduction to whet appetites:
Valentin Cedeno and Angel Concepcion participated in smash-and-grab job, using sledgehammers to bash open a large display case at Mayor's Jewelers in Boca Raton, Florida. They made off with 108 expensive watches with a total value of $1,485,000. The store got the watches back after the police recovered them, and it spent $13,929 repairing the damage some of the watches suffered during the smashing and grabbing.... The key issue at sentencing was the amount of "loss" under United States Sentencing Guidelines §§ 2B3.1(b)(7)(E)–(F). If the loss did not exceed $1,500,000, Cedeno and Concepcion were due a four-step increase in the offense level, but if it exceeded $1,500,000, they were in line for a five-step increase.
The (hinky?) procedural back-story on Spears
As detailed here, yesterday the Eighth Circuit in Spears issued a major en banc ruling on crack sentencing after Booker. When the ruling came out, I couldn't remember when the en banc oral argument took place. Professor Mark Osler then provided this report detailing the procedural quirkiness in this case:
On June 14 of this year, I argued before a three-judge panel in the Eighth Circuit case of U.S. v. Spears. The panel was composed of Judges Lay, Bye, and Riley. I was arguing on behalf of a group of amici supporting the defendant's downward variance based on the harshness of the 100/1 powder/crack ratio.
At argument, it was clear that Judges Lay and Bye had some sympathy to our side, and that Judge Riley (while very knowledgeable) was hostile to our position. For months, no opinion was issued. Somewhat mysteriously, an en banc opinion has now been issued, with Riley writing for the majority to reverse the sentence and Lay and Bye dissenting.
What floored me was that there was no en banc hearing or briefing — the case seamlessly converted into an en banc decision without a panel opinion being issued. Checking the docket, I see that the following order was filed on October 18 of this year:
On its own motion, the court en banc has voted that these cases will be resubmitted en banc, and the June 14, 2006 submission before the panel consisting of Judge Bye, Judge Riley, and Judge Lay is vacated. The court en banc will determine whether further briefing and argument are required, and if they are, the clerk will notify the parties of any schedule which is established for further briefing and argument.
From what I can surmise, then, what happened is the following: Initially, the panel was divided 2-1, with Judge Bye writing a majority opinion and Judge Riley preparing a dissent. However, at this point the case did not proceed to the logical next step of a ruling being issued by the panel. Instead, Judge Riley was able to get the remainder of the judges in the circuit to agree to his dissent, and "on its own motion" the court as a whole voted to make the Riley dissent the majority opinion of the en banc court, without the messiness of hearings or a panel opinion.
Does anyone else see a problem with this process? At the very least, I would like to have had the chance to address the questions of the remainder of the court.
Transcripts of USSC crack hearings
The US Sentencing Commission has now made available at this link the full hearing transcript from the November 14, 2006, public hearing on cocaine and federal sentencing policy at the Georgetown University Law Center. The transcript runs 300+ pages, and kudos will go to any readers who pinpoint notable passages in the comments.
Some related posts on crack sentencing:
- Extended account of USSC crack hearing (with lots of links)
December 5, 2006
Why Lopez is a big deal
A commentor here and FPD Steve Sady have effectively pointed out that I was quite wrong to suggest that today's SCOTUS decision in Lopez v. Gonzales might not be a big deal (basics here). As Steve explains in this post, the Supreme Court has previously "said that the definition of 'crime of violence' under the immigration statute and 'aggravated felony' had to have the same meaning in both sentencing and immigration contexts." Consequently, for complex reasons Steve details in his post, Lopez is actually a pretty big sentencing case because it reverses bad guidelines sentencing law in nearly every circuit.
UPDATE: How Appealing has now collected newspaper coverage of Lopez here.
Seventh Circuit continues reasonableness ways
In two opinions today, the Seventh Circuit continues the circuits' pattern of affirming nearly every within- and above-guideline sentence appealed by defendants. In US v. Orozco-Vasquez, No. 05-3920 (7th Cir. Dec. 5, 2006) (available here), Judge Sykes affirms a sentence "42 months more than the high end of the advisory sentencing guidelines range of 63-78 months." In US v. Gama-Gonzalez, No. 06-1965 (7th Cir. Dec. 5, 2006) (available here), Judge Easterbrook affirms a within-guideline sentence and speaks at length about reasonableness review.
In part because Judge Easterbrook is in fine form, Gama-Gonzalez merits quoting at some length (with cites omitted and italics in original):
To say that a sentence within the range presumptively is reasonable is not to say that district judges ought to impose sentences within the range. It is only to say that, if the district judge does use the Guidelines, then the sentence is unlikely to be problematic.
United States v. Booker, 543 U.S. 220 (2005), increases district judges' discretion. It will be the rare sentence indeed that was required under the Guidelines before Booker but forbidden afterward, when discretion has gone up rather than down. One permissible use of discretion is to start with the Guidelines' framework, which is designed to curtail unjustified disparity in sentences — for avoiding unjustified disparity is one of the statutory objectives. Likewise the Guidelines recognize other statutory criteria, such as choosing punishment that achieves an appropriate level of deterrence and desert. When saying that sentences within the Guidelines are presumptively reasonable, we mean no more than the modest proposition that district judges generally possess the discretion under §3553(a) and Booker to follow the Guidelines, if they so choose, without acting un-reasonably. It is accordingly unnecessary to hold this appeal, and others like it, for the Supreme Court's decision in Rita v. United States, cert. granted, No. 06-5754 (U.S. Nov. 3, 2006).
A presumptively reasonable sentence is not a conclusively reasonable one, for the Guidelines may omit some factor to which §3553(a) or a sound exercise of discretion gives weight.... A judge must deal with serious arguments for lower sentences, but Gama-Gonzalez's argument was insubstantial. Many states, using three-strikes laws, would imprison him for 25 years or more even though none of his felonies was violent. His federal sentence of three years and one month for a third felony conviction is comparatively modest.
Among other flourishes, Judge Easterbrook references the comparative severity of state sentencing to support the Seventh Circuit's reasonableness finding in Gama-Gonzalez. I hope the Seventh Circuit might likewise approve whenever a district judge (like Judge Adelman, for example) references the comparative leniency of state sentencing (on minor crack offenses, for example) to support the reasonableness of a below-guideline sentence.
Also, as state law gurus can confirm, I believe only in California, and certainly not in "many states," would an offender like Gama-Gonzalez possibly face a sentence of 25+ years' imprisonment. Indeed, I am pretty sure California's three-strikes laws would not be applicable to Gama-Gonzalez because his second offense involved only possesson of marijuana. So I guess the real question is whether the Seventh Circuit would approve of a district judge mis-stating the comparative leniency of state sentencing to support its ruling.
Eighth Circuit follows the herd on crack sentencing
In an en banc ruling today in US v. Spears, No 05-4468 (8th Cir. Dec. 5, 2006) (available here), the Eighth Circuit has adopted the standard lower court view of post-Booker variances based on the crack/cocaine sentencing disparity. Here is the official summary of the long opinions in Spears:
[Riley, Author, with Chief Judge Loken, Lay, Wollman, Murphy, Bye, Melloy, Smith, Colloton, Gruender, Benton, and Shepherd, Circuit Judges] Evidence was sufficient to support conspiracy to distribute crack and powder cocaine based on witness testimony and defendant's videotaped confession. Admission of prior 2000 felony conviction was not an abuse of discretion. District court's categorical grant of a downward variance using a 20:1 powder cocaine to crack cocaine quantity ratio rather than 100:1 ratio was error. Neither Booker nor section 3553(a) authorizes district court to reject 100:1 quantity ratio. District court failed to perform section 3553(a) analysis and conduct an individualized, case-specific evaluation of the facts or of the defendant. Case is remanded for resentencing. Judge Bye and Lay dissent.
A few quick comments on Spears before I get to read the opinions closely:
1. It is notable and very disappointing that Judge Diana Murphy, who was chair of the US Sentencing Commission when it produced its 2002 report stating the crack guidelines undermine the goals set forth by Congress in 3553(a), does not write in this case. She should know more about this issue than perhaps any other judge in the country, and yet she is silent here.
2. It is a below-guideline crack sentence that was reversed by the Eighth Circuit that is being reviewed by the Supreme Court in Claiborne. If defendant Spears seeks cert, it seems likely he should get a GVR after SCOTUS decides Claiborne this summer.
Some related posts on crack sentencing after Booker:
- Extended account of USSC crack hearing (with lots of links)
- The facts and decisions in Claiborne and Rita
- The district court sentencing in Claiborne and cert briefing
UPDATE: Because the dissent in Spears adopts many ideas in the amicus brief I signed in this case, I am obviously partial to its basic approach to these issue. I find especially compelling this articulation of the issue by Judge Bye:
Under the current system (which Congress has chosen not to change following Booker), Congress can only advise district courts on the imposition of a particular sentence within a particular range. Thus, if we start from the premise the guidelines' system is advisory, which we must, any advice given within such a system cannot be binding by its very nature, no matter whether the advice is on matters of broad policy or otherwise.
That said, I think both opinions in Spears provide effective accounts of the latest developments and main viewpoints of the circuits on the crack/cocaine sentencing debate. Anyone interested in catching up on these debates ought to start by reading Spears.
SCOTUS limits deportable offenses
As reported here at SCOTUSblog, the Supreme Court in Lopez v. Gonzales "ruled, by an 8-1 vote on Tuesday, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation." Justice David Souter wrote the opinion for the Court, with only Justice Clarence Thomas dissenting.
I doubt this ruling will have a dramatic impact on criminal law or immigration law, unless the opinion has lots of notable dicta. I'll comment more when I get a chance to review the opinion.
UPDATE: The Court's work in Lopez can now be found at this link. Nothing earth-shattering jumped out from a quick read of the opinions, both of which have an intricate focus on seemingly small issues of statutory interpretation. Perhaps what is most interesting is that Justice Souter's opinion was able to secure all the Justices votes save for Justice Thomas.
Great reads on SSRN
This morning I see these four new pieces on SSRN, all of which look very interesting:
- Embracing Chance: Post-Modern Meditations on Punishment by Bernard E. Harcourt
- Capital Punishment is Unconstitutional, but that Doesn't Mean that the Supreme Court Should So Rule by Michael J. Perry
- Desert, Democracy, and Sentencing Reform by Alice Ristroph
- On the Uses and "Abuses" of Empirical Evidence in the Death Penalty Debate by Paul R. Zimmerman
December 4, 2006
Crazy capital developments in two states
Two states with scheduled executions for this week have had some crazy developments:
- In Ohio, as well covered by ODPI, it appears that Jerome Henderson had the good fortune of pulling the right Sixth Circuit panel for his stay application. That panel, voting 2-1, granted a stay over the weekend, and today neither the full Sixth Circuit nor the Supreme Court bothered to undue it. Thus, Henderson's execution will not go forward tomorrow (even though other Ohio defendants seemingly making similar claims were executed earlier this year).
- In Virginia, as detailed in this AP article, a defendant with a troubled mental history is supposed to be executed on Friday. According to the article, "several of Walton's fellow death row inmates said his behavior is consistently bizarre, describing him as 'nuttier than a fruitcake,' 'crazy as a bed bug,' and 'a walking talking cukoo (sic) bird.'"
UPDATES: As detailed in this AP report, Virginia "Gov. Timothy M. Kaine on Monday postponed the execution of a man convicted of killing three neighbors to allow more time to review claims the condemned inmate is mentally retarded and insane."
Also, this AP story provides more information about the stay in the Ohio capitl case.
Slow-poke SCOTUS: a sign of division?
I noted this morning that, by this date during SCOTUS October Term 2005, the Supreme Court had already issued 10 opinions. (The list of OT '05 opinions is here, showing six per curiams and four signed opinions by the end of Novermber.) But now, more than two months into October Term 2006, the Court has given us only two opinions. (The list of OT '06 opinions is here, showing one per curiam and one signed opinion.)
Since the Court is usually able to get unanimous opinions out quickly, I am taking the Court's slow-poke ways as a sign that there is little consensus at the start of the new Term. I guess this would not be a surprise in light of the criminal law start to OT '06, but it is still notable that the Roberts honeymoon seems to be over.
An intriguing note on Blakely and "civil" remedies
The latest issue of the Columbia Law Review includes an interesting Note exploring how Blakely might affect orders of restitution and forfeiture. This Note is entitled "A Civil Jury in Criminal Sentencing: Blakely, Financial Penalties, and the Public Rights Exception to the Seventh Amendment," and is available at this link. Here is the abstract:
In the 2004 case of Blakely v. Washington, the Supreme Court held that the Sixth Amendment's criminal jury trial right applies not only to the guilt phase of a trial, but also to the sentencing phase. Since then, criminal defendants have brought Sixth Amendment challenges to judge-imposed restitution and forfeiture, arguing that the facts underlying such financial penalties must be proven to a jury beyond a reasonable doubt. Many circuits have decided that Blakely does not apply to restitution and forfeiture because they are civil remedies, as opposed to criminal penalties, and thus do not fall within the ambit of the Sixth Amendment. This Note argues that, even if restitution and forfeiture are civil in nature, the logic of Blakely suggests that the Seventh Amendment's civil jury right nevertheless applies to such penalties. It then shows how the "public rights" doctrine — a judicial construct in administrative law used to justify exceptions to the Seventh Amendment’s civil jury right — provides constitutional support for exempting certain financial penalties from the reach of Blakely.
Cert denied in Angelos mandatory minimum case
SCOTUSblog provides this link to today's Order List from the Supreme Court, and I noticed that the Court has denied cert in the Weldon Angelos case. Angelos is the first offender who, because of federal mandatory minimums, was sentenced to 55 years' imprisonment (begrudgingly) by federal District Judge Paul Cassell for a series of marijuana sales. SCOTUSblog had the Angelos case is on their "petitions to watch," but the Court has now taken a pass. Of course, Weldon Angelos can, and likely will, still pursue some of his legal claims though a federal habeas action.
Some related posts:
UPDATE: The AP has this brief report on the denial of cert in Angelos.
MORE: The Salt Lake Tribune has this extended piece on the Angelos case.
Notable crack sentencing comments from Sixth Circuit
At the end of a long opinion dealing with lots of issues, the Sixth Circuit today in US v. Caver, No. 05-3295 (6th Cir. Dec. 4, 2006) (available here), has this interesting discussion of crack sentencing after Booker in the course of rejecting a defendant's argument that his within-guideline sentence is unreasonable:
Defendant Cloud points to nothing about the particular facts of his case that make his sentence unreasonable; rather, he argues that, post-Booker, the 100:1 ratio is per se unreasonable. We disagree. Defendant Cloud, in effect, asks this court to not find his sentence unreasonable, as we are authorized to do by Booker, 543 U.S. at 261, but rather to declare a portion of the Sentencing Guidelines unreasonable under all circumstances. Were we to act upon Defendant Cloud’s suggestion, we would essentially be exercising legislative power. Booker does not authorize this. Thus, while a departure from the 100:1 ratio may well be reasonable in a particular case, applying the ratio does not, ipso facto, make a sentence unreasonable under existing case law. This is so even though we as a panel might disagree with the 100:1 ratio or the rationale for it. Because Defendant Cloud has not demonstrated that the 100:1 ratio was unreasonable in his case, his challenge to his sentence on this ground must fail.
Intriguing ex post Booker issue from Second Circuit
This article from the Connecticut Post concerning the sentencing of a former state senator alerted me to an intriguing (unpublished) opinion from the Second Circuit in US v. Newton, No. 06-0714 (2d Cir. Nov. 30, 2006) (available here). Newton is interesting in part because of the consideration (and ultimate avoidance) of ex post facto issues after Booker as to which version of the guidelines should apply. As detailed in posts noted below, I think this is a huge topic that is not being fully explored in lower court post-Booker jurisprudence.
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
- Who will be most sorry about Demaree?
- Ninth Circuit (unwittingly?) creates Booker ex post circuit split
December 3, 2006
Documentary on restorative justice
A favorite reader spotted an interesting looking documentary about restorative justice airing tonight at 8pm on MSNBC entitled "Beyond Conviction." At this link is a commentary from the director, which has this introduction:
This documentary tells the story of two survivors of horrific crimes on a journey toward healing and resolution. The film follows participants through a program in which victims of the most violent crimes confront the perpetrators. In the essay below, the director shares her experience making the film.
Executions and clemeny in Ohio
This local AP story discusses the stories of the death penalty and executive clemency in Ohio as out-going governor "Bob Taft is debating a plea for mercy from a condemned inmate that, if rejected, will result in the 25th prisoner being put to death during Taft's time in office." The article provides lots of information about the history of clemency and the death penalty in Ohio; it also spotlights that "Ohio has had one of the nation's busiest death chambers since 1999, including executing the most inmates of any state after Texas in both 2004 and again this year."
Interestingly, as detailed here at ODPI, this last possible execution during the Taft Administration could be disrupted by on-going lethal injection litigation. And, as I have discussed in a number of prior posts, the new incoming governor and attorney general of Ohio have both expressed significant reservations about capital punishment. Stay tuned.
Some recent related posts:
- Could Ohio and Wisconsin chart a path to a better death penalty?
- A new look at the death penalty in Ohio
- Early tests for a new capital era in Ohio?
A tough question after finding kiddie porn
A few weeks ago, Randy Cohen, who writes "The Ethicist" column for the New York Times Magazine, called me to get a better understanding of the sentencing dynamics surrounding the possession of child pornography. This week's column has the question that prompted his call:
I am an Internet technician. While installing software on my company's computer network, I happened on a lot of pornographic pictures in the president's personal directory, including some of young children — clearly less than 18, possibly early teens. It is probably illegal and is absolutely immoral. Must I call the police? I think so, but I need my job. Signed S.M.N.
Randy Cohen was kind enough to quote me in his answer, though I am not entirely sure I agree with Cohen's ethical judgment. I am sure, however, that this is a tough question, and I am interested in reader reactions.