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January 30, 2007

Judge Posner assails federal lawyers for poor "trial" of state law

57Today's challenge for readers: can anyone explain to me how Judge Posner's work for the Seventh Circuit in US v. Boyd, No. 06-2431 (7th Cir. Jan 30, 2007) (available here), does not undermine the principles of Blakely as well as numerous Bill of Rights provisions and the Framers' structural vision of liberty and limited federal government?  I know the NRA and conservative libertarians do not like to come to the defense of convicted felons, but Boyd really strikes me as beyond the pale.

The facts set out in the Boyd opinion are very sketchy, so perhaps there is an ugly underbelly.  But it seems that Artemus Boyd, at 3am in the morning, fired six bullets into the air while leaving an Indianapolis nightclub with his girlfriend.  Though nobody was hurt in any way by this misguided act of revelry and male bravado, somehow the defendant ended up being federally indicted for being a felon in possession of a gun.  Sensibly, it would seem, Artemus Boyd decided to plead guilty to this charge.  That's when things get a bit kooky.

At sentencing, the federal district judge enhanced Boyd's sentence (it is not clear how much [Update: apparently 4 guideline offense-levels]) based on her view "that the defendant had used the gun to commit another felony."  That felony, apparently, is the Indiana state crime of criminal recklessness.  Notably, there is no evidence that Indiana prosecutors ever thought to indict or try Boyd for the Indiana state crime of criminal recklessness.  Nevertheless, despite an obviously sketchy factual record, the federal district judge essentially tried and sentenced Boyd to additional time for the Indiana state crime of criminal recklessness.

On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense.  Instead, Judge Posner essentially conducts his own philosopher-king bench trial, complete with his own evidence ranging from "a satellite photo (available free of charge from Google)," a website called "The Arms Site" (that's where the picture above is from), and a dated criminology article (entitled "Stray Bullets and 'Mushrooms': Random Shootings of Bystanders in Four Cities, 1977-1988").

Along the way, Judge Posner complains about the "sloppiness with which the case has been handled by both sides."  Judge Posner also laments that the record did not specify the type of gun involved, the type of ammunition, or what persons or buildings were in the vicinity of the shooting.  So, how does the story end?  So speak Judge Posner for the Seventh Circuit:

Despite these gaps, we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute. AFFIRMED.

Perhaps someone can get me a new copy of the Constitution, but I missed the section that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute."  Maybe the federal prosecutor and defense lawyer were "sloppy" because they do not know how they are supposed to try an Indiana state charge of criminal recklessness to a federal circuit court. YEESH.

UPDATE:  Howard Bashman provides this link to the oral argument in Boyd, where you can hear the circuit judges asking lots of factual questions of counsel and debate whether there can be a "remote alley."  And Kent in the comments rightly reminds me that conservative libertarians at the Cato Institute "come to the aid of convicted criminals all the time."

January 30, 2007 at 04:03 PM | Permalink

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» Boyd v. Blakely? from The Volokh Conspiracy
Over at the Sentencing Law & Policy blog -- an absolute must-read blog for those interested in sentencing issues -- [Read More]

Tracked on Jan 31, 2007 10:06:33 AM

» Boyd v. Blakely? from The Volokh Conspiracy
Over at the Sentencing Law & Policy blog an absolute must-read blog for those interested in sentencing issues [Read More]

Tracked on Jan 31, 2007 11:46:57 AM

» Thoughts on the Boyd Case: from The Volokh Conspiracy
I wanted to offer a few thoughts in response to Doug Berman's post (mentioned by Jonathan below) about Judge Posner's sentencing opinion in [Read More]

Tracked on Jan 31, 2007 1:19:07 PM

Comments

I'm just grateful President Bush is trying to appoint "conservative" judges to hopefully take the place of these activist Reagan appointees. Also, if I put crap like google maps in my briefs I'm pretty sure the 11th circuit would have my ass in no time.

Posted by: | Jan 30, 2007 4:37:55 PM

"I know the NRA and conservative libertarians do not like to come to the defense of convicted felons...."

Doug, do you consider the Cato Institute to be "conservative libertarians"? They come to the aid of convicted criminals all the time. We have crossed swords on multiple occasions.

Posted by: Kent Scheidegger | Jan 30, 2007 4:41:27 PM

One question: (i know this is a little off-point, but it caught my eye.)
I'm not sure I've heard the term "animal spirits" used before.
I'm always delighted by Posner's use of language, but this one stumps me a bit.

Posted by: Steve H. | Jan 30, 2007 4:46:01 PM

Just to spread the shit around a little, part of the problem is that Congress passed laws with high maximum sentences, sentences far in excess of what judges actually impose in the ordinary course for crimes of that type.

In the absence of such wide latitude, the Sentencing Guidelines wouldn't be necessary and seemingly random deviations from the norm based on facts irrelevant to the crime of conviction wouldn't be possible.

Posted by: ohwilleke | Jan 30, 2007 4:48:25 PM

Was this a case where judge-found facts were used to justify a sentence at the higher end of the statutory range?

Or was it a case where judge-found facts were used to expose the defendant to harsher penalties than would have been available based on the facts he admitted?

The former, I believe, is permitted under Apprendi, while the latter is not.

Posted by: Marc Shepherd | Jan 30, 2007 4:53:36 PM

Suddenly activist "philosopher-king" judging doesn't look so good? Funny. And Posner wasn't even doing it--he was simply deferentially affirming a lower court decision on a sentencing enhancement.

But no, we have a living constitution, and can absolutely trust judges to let it grow.

Posted by: R | Jan 30, 2007 4:54:14 PM

"Animal spirits" comes from Keynes' General Theory -- or at least that is the most frequently-cited quotation of which I am aware. Posner almost certainly knows this. (The source, not the state of my own awareness.)

Posted by: CJColucci | Jan 30, 2007 4:58:55 PM

This sort of finding is the very issue that the 3rd Circuit is addressing in Grier, which you have blogged about in the past. And I argued this issue just last week in the Western District of PA in a felon-in-possession case. In response to Marc Shepherd's post, I don't think that even under Apprendi can a defendant be found to have committed an uncharged, unadmitted to crime to justify increasing his sentencing guidelines calculation, even if it is within the statutory maximum. If memory serves me correctly, Blakely says that the maximum sentence is the maximum sentence that a court can impose based on facts proved or admitted by the defendant, not the statutory maximum. Unfortunately, that language was nowhere to be found in Booker. As one judge explained to me, they are walking a fine line in their sentencing practices now, or else defendants will be facing mandatory minimums mandated by Congress.

Posted by: Damien Schorr | Jan 30, 2007 5:02:48 PM

In response to Marc Shepherd's post, I don't think that even under Apprendi can a defendant be found to have committed an uncharged, unadmitted to crime to justify increasing his sentencing guidelines calculation, even if it is within the statutory maximum.

Well, the Booker remedial opinion says that he can, because the guidelines are merely advisory. A majority of the Court has said that judges can increase guideline ranges based on facts not admitted by the defendant, such as perjury on the stand during trial, or even acquitted conduct.

On similar reasoning, surely the judge can find a defendant guilty of a state crime for which he was never charged. At least five Justices think that's perfectly fine, as long as the guidelines are merely advisory.

Posted by: Marc Shepherd | Jan 30, 2007 5:24:20 PM

ANDERSON, IND. Associated PressSPORTS

Portland Trail Blazers forward Zach Randolph was questioned by police after witnessing the shootings of three men inside a bar early Sunday.

An unidentified male relative of Randolph is a suspect in the shootings, said Detective Terry Sollars of the Anderson Police Department. That man turned himself in for questioning Sunday morning.

"He (Randolph) was in a close proximity to the shooting and is considered a witness at this time. It appears one member of his party was involved," Sollars said. "He did co-operate and was released."

No arrests have been made, Sollars said.

Randolph could not be reached for comment Sunday.

The shootings occurred about 2 a.m. at Sinbad's Lounge in Anderson. Randolph, a native of nearby Marion, was in the bar with relatives and one of his business managers, Sollars said.

An argument developed with others in the bar, and someone opened fire, injuring Phillip Corthen Jr., 30, and Travis A. Wilson, 25, both of Muncie, and Artemus Boyd, 22, of Indianapolis.

None of the injuries were life threatening. Investigators did not know the reasons behind the argument and shooting.

Randolph, winner of the NBA's Most Improved Player award this year, has had previous brushes with police. While in high school, he was arrested in 1998 in connection with the theft of guns from a store. He pleaded guilty to two counts of receiving stolen property and served 26 days in a juvenile center.

Last September, he pleaded guilty to a misdemeanour count of possession of alcohol by a minor for a 2002 incident and was fined $1 and sentenced to 60 days probation. Last December, Portland, Ore., police arrested him on suspicion of driving under the influence.

Posted by: Life Is More Complicated Than It Appears In A Circuit Court Opinion | Jan 30, 2007 8:28:43 PM

CJColucci:
Thanks. Reference went right by me..

Posted by: Steve H. | Jan 30, 2007 10:35:23 PM

The 7th Cir is there to affirmed all cases no matter how unreasonable. This is nothing new as they have been getting away with it for the longest. It was the 7th cir that enhanced Welch for uncharged, unproven charges, not admitted by a ponderance of evidence by 7 yrs and stated the guidelines is now advisory. Where does Apprendi, Blakely and Cunningham fits in the Federal courts when Booker states differently.

Not surprise at all.

Posted by: Welch | Jan 30, 2007 10:55:39 PM

Marc Shepard notes above that, under Booker, proof by a preponderance to a judge can be used to increase the Guidelines range. But then he says, "[a]t least five Justices think that's perfectly fine, as long as the guidelines are merely *advisory.*

This is not quite right. Only three sitting Justices joined the Booker remedial opinion. And, after Cunningham, we know that the new Chief is in the Booker merits majority; who is to say that he would not join 4 of his 5 colleagues in the Cunningham majority on remedy?

I think Claiborne and Rita are going to have plenty to say about this, and after those cases, Judge Posner's trial-by-Circuit-Judge is going to look even less kosher than it does now.

Posted by: Anonymous | Jan 31, 2007 1:53:19 AM

Anon, I think it's highly unlikely that the new Court will overrule the Booker remedial opinion. That portion of the opinion is likely to stand as precedent (since Congress could easily overrule it by statute), even if the two new justices wouldn't have voted for it in the first place.

Posted by: Marc Shepherd | Jan 31, 2007 8:29:28 AM

Calm down. It may be poor policy, but how different is this from other post-Booker sentences. Isn't this just a form of Booker-approved, Watts-approved relevant conduct. The statutory maximum set by Congress was not breached. The defendant was just punished for the way in which he violated the felon in possession law.

Sadly, I wonder how unusual J. Posner's creative use of the appellate record actually is. All too often the appellate court's version of the facts becomes accepted without question. How often do any of us actually go back and read the briefs, let alone the record.

Posted by: Calm | Jan 31, 2007 9:19:55 AM

Marc, I agree. But just to be contrarian, one (significant?) consideration in the stare decisis analysis is whether the precedent has proven unworkable. I am biased, but given what we have seen of reasonableness review, I think the Booker remedy fits the bill.

Posted by: | Jan 31, 2007 9:25:15 AM

In response to Damien, who said "If memory serves me correctly, Blakely says that the maximum sentence is the maximum sentence that a court can impose based on facts proved or admitted by the defendant, not the statutory maximum."

The caveat in Blakely was that "the maximum sentence that a court can impose based on facts proved or admitted by the defendant" was not, in fact, the same as the statutory maximum. But since Booker made the sentencing guidelines advisory, the "the maximum sentence that a court can impose" IS the statutory maximum. And given that, there are no limitations on what facts the court can take into consideration in determining where to sentence the defendant (between zero and the statutory maximum). All 9 justices agreed on that point.

In response to Doug, who said "I missed the section [in the Constitution] that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute."

Of course the federal court cannot convict a federal defendant of a state crime -- but that's not what happened here. The federal court, in sentencing a federal defendant for the federal crime of being a felon in possession, took into account that the defendant not only possessed the firearm, but used it in a criminal reckless manner. Why shouldn't the court be permitted to take that into account? Your response, I assume, is that you don't believe the court should be able to take into account facts that were not proven to a jury. But on that point, my friend, the Supreme Court is in unanimous opposition to your view.

I agree with Calm -- this is a run-of-the-mill relevant conduct issue. Posner's pontificating may have made it look like more than that, but that's not particularly unusual either.


Posted by: Addie | Jan 31, 2007 9:53:08 AM

If Judge Posner's research was deficient, Boyd's counsel can always point that out in a petition for rehearing.

Posted by: | Jan 31, 2007 10:56:07 AM

Isn't the correct analysis of this issue simply this: imagine a world with no guidelines. In this world, did the trial court issue a proper sentence, i.e., within the statutory maximum? If yes, then the fact that the trial court considered, as relevant conduct, certain activities that posed a threat of harm, to distinguish this "felon in possession of firearm" from other such felons is probably okay, at least as far as the constitution is concerned.

Posted by: Christopher Cooke | Jan 31, 2007 11:30:28 AM

Isn't the correct analysis of this issue simply this: imagine a world with no guidelines. In this world, did the trial court issue a proper sentence, i.e., within the statutory maximum? If yes, then the fact that the trial court considered, as relevant conduct, certain activities that posed a threat of harm, to distinguish this "felon in possession of firearm" from other such felons is probably okay, at least as far as the constitution is concerned. And, it is okay under the guidelines, so long as she did not abuse her discretion in imposing a guidelines sentence. I think that is why the defense focused solely on whether the uncharged crime was in fact a crime, i.e., did the defendant's conduct in discharging the firearm create a substantial risk of bodily harm to others?

Posted by: Christopher Cooke | Jan 31, 2007 11:48:50 AM

Addie said: "The federal court, in sentencing a federal defendant for the federal crime of being a felon in possession, took into account that the defendant not only possessed the firearm, but used it in a criminal reckless manner. "

The federal court didn't just "[take] into account that the defendant...used [the firearm] in a criminal reckless manner." No one, other than the federal court, concluded that the USE (as oppposed to the possession) was criminal. If the State court had tried and convicted the defendant of criminal use, then so be it. But Doug's description of the case is accurate - the sentencing court, and then the circuit court, "tried" and "convicted" this defendant of a state crime.

Posted by: A | Jan 31, 2007 3:08:50 PM

I agree. The relevant sentencing guideline that the sentencing court was probably following was U.S.S.G. 2K2.1(b)(5), which is worded to provide for an enhancement if the firearm was used or possessed in connection with another felony offense. The court therefore has to find that the defendant committed another crime that he was never charged with nor admitted to. I know that Booker permits this, but it violates due process and jury trial rights. I can't count the number of times I have had to sit there in the local jail explaining to some common garden variety street criminal that he is facing an enhanced sentence because some judge is going to find that he committed a crime not specified in the indictment nor admitted to or proven. Their response is generally along the lines of "that's whacked". It is too bad the Supreme Court does not see it that way, too.

Posted by: Damien Schorr | Jan 31, 2007 3:40:09 PM

Putting _Booker_ issues to the side for one moment, the burden of proving the "other offense" still rests squarely on the Government, yet the courts (at both levels) essentially gives the Government a pass on the facts and fills in the blanks for them. The proper response should have been, "sorry, you failed to prove that Boyd committed this offense - better luck next time." The Sixth Amendment issues would be a little bit easier to swallow if the Government was actually put to some burden of proof that exists now, slight as it is.

Posted by: JDB | Jan 31, 2007 3:50:48 PM

As an appellate criminal defense attorney, I have to say that only JDB has the analysis right. Certainly not you, Doug. The sentencing judge neither "tried" nor "convicted" the defendant for the Indiana offense. She found that he had committed the *federal* offense under aggravating circumstances, which justified a higher sentence within the (excessively broad) range allowed by Congress. She appears to have found that "fact" (here, a legal conclusion that the "facts" make out a "felony" under Indiana law) on an insufficient record. The "facts" imported into the record by Judge Posner and the rest of the panel do not appear to be judicially noticeable or otherwise permissible for an appellate court to use to supplement an inadequate record. (If the district court record had been sufficient, applying the proper standard of proof - where the fact used to enhance the sentence is the commission of another crime, shouldn't that burden be proof beyond a reasonable doubt? - then the policy issues you raise would arise, Doug.) The burden of proof being on the govt for this enhancement, if the record is insufficient, the correct result is reversal and remand for resentencing without the enhancement (we call this the "one bite at the apple" rule). I don't think it's reasonable to suggest that a sentence for illegal possession of a firearm should be indifferent to whether the firearm was possessed harmlessly or dangerously. That this "dangerousness" enhancement is expressed by the Commission in highly restrictive terms (favorable to defendants), that is, no enhancement unless the danger rises to the level of a punishable felony, also seems sensible to me.

Posted by: Peter G | Jan 31, 2007 5:48:59 PM

Peter G., I am using a functional --- not formalistic --- notion of tried and convicted of a state crime for what happened in this case.

If the guidelines provide for a dangerousness enhancement, that makes sense and creates a much different dynamic both formally and for litigation purposes. But instead the USSG enhancement provides for a "commiting another felony" enhancement, which is being understood (perhaps inappropriately) to enable or even require a federal judges to assess and adjudicate possible applicable state crimes.

Notably, criminal endangering in Ohio is a misdemeanor. Thus, had Boyd done the exact same dangerous(?) act at 3am in Columbus, rather than in Indy, he does not get this enhancement because he has not committed a state felony. That's why I think it is accurate to describe what happened in federal sentencing as a trial and conviction for a questionable state offense.

And, of course, the reality of how different the guideline would work in different states puts the lie to the idea that following the guidelines is essential in the name of federal sentencing uniformity. What a joke (for everyone except Artemus Boyd).

Posted by: Doug B. | Feb 1, 2007 2:55:49 AM

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