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December 10, 2008

Tenth Circuit find Booker not applicable in crack retroactivity proceedings

A helpful reader reminded me today that I still haven't blogged about an important Tenth Circuit ruling concerning Booker's applicability to crack retroactivity proceedings that was handed down late last week.  (I can blame OJ and Plaxico for distracting me from more sober and arguably more important issues.)  The thoughtful panel decision in US v. Rhodes, No. 08-2111 (10th Cir. Dec. 5, 2008) (available here), cannot be easily summarized, but here are some key sections:

Although the parties and district court agreed that § 3582(c)(2) afforded the district court authority to modify Rhodes’ term of imprisonment, the parties and district court disagreed as to the extent of that authority. In particular, the government and district court concluded, over Rhodes’ objection, that the district court’s authority was circumscribed by § 1B1.10 of the Sentencing Guidelines.... Rhodes argues that, “because a hearing pursuant to § 3582(c)(2) is a new sentencing hearing, Bookeris applicable and the guidelines – including § 1B1.10 – must be considered advisory.”...

The remedial portion of Booker resolved the Sixth Amendment issue by excising § 3553(b)(1), which mandated that district courts, in conducting original sentencing proceedings, impose within-Guidelines sentences.  Importantly, however, Booker made no alteration to § 3582(c)(2), which, as noted, provides the statutory basis for sentence modification proceedings.... [T]he Sixth Amendment concerns that gave rise to the Booker decision will not be replicated in sentence modification proceedings.  Given the narrow scope of sentence modification proceedings, there is no concern that a district court in such a proceeding will make factual findings that in turn will raise a defendant’s sentence beyond the level justified by “the facts established by a plea of guilty or a jury verdict . . . .” Booker, 543 U.S. at 244.  Indeed, a district court in a sentence modification proceeding is authorized only to “reduce the [originally imposed] term of imprisonment,” 18 U.S.C. § 3582(c)(2), not to increase it.  As a result, we conclude that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2).

The Tenth Circuit panel in Rhodes recognizes that its holding is in conflict with the Ninth Circuit decision on this issue in the Hicks case:

The problem with the Hicks decision, in our view, is that it failed to consider that, as outlined above, sentence modification proceedings have a different statutory basis than original sentencing proceedings.  As a result, the Ninth Circuit erroneously concluded that the remedial portion of the Booker decision, which rendered the guidelines effectively advisory for purposes of original sentencing proceedings, applied to § 3582(c)(2) proceedings as well.

Ah, the sweet smell of a clean circuit split...

December 10, 2008 at 04:25 PM | Permalink

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