Friday, June 25, 2010

A notable Sixth Circuit concurrence lamenting Dillon and modern severity

Concurring in a Sixth Circuit panel decision today in US v. Robinson, (6th Cir. June 25, 2010) (available here), Judge Merritt assails the Supreme Court's crack retroactivity ruling in Dillon last week and broadly laments current federal sentencing realities.  Here is a snippet of Judge Merritt's separate opinion:
The Sentencing Commission has the authority, according to United States v. Dillon, No. 09-6338, June 17, 2010, by mandatory rule, to entirely repeal individualized sentencing in such cases.  For the reasons stated by Justice Stevens in his dissent, I would reach the opposite conclusion, if I could, and apply the principle that under § 3582(c) a federal court should consider the “no-greater-than-necessary” principles of § 3553(a).

In addition, I would point out that 18 U.S.C. § 3661, unmentioned by the Court in Dillon, says:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. (Emphasis added.)

This is a flat-out, general, statutory prohibition against restraining judges when they must pronounce sentence from considering the injustice of Dillon’s sentence or any injustice in Robinson’s sentence in this case. The Sentencing Commission’s rigid rule that continues in place overly harsh sentences gives no consideration to this statutory requirement.  So we continue on without hope for change with a sentencing system that Justice Stevens accurately describes as... "an exceptionally, and often mindlessly, harsh federal punishment scheme."

This “mindlessly harsh federal punishment scheme” is, as Justice Stevens says earlier in the opinion, now so bad that it should be regarded as “on dubious constitutional footing.”  In outlawing another such mindlessly harsh form of punishment more than 50 years ago — expatriation — the Warren Court said that our constitutional system “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Trop v. Dulles, 356 U.S. 86, 101 (1958).  In a concurring opinion, Justice Brennan pointed out:

In recent years we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society’s own best protection. Id. at 111.

Justice Brennan referred to the effort to get rid of these values by using the punishment of expatriation as nothing “other than forcing retribution from the offender — naked vengeance.” Id. at 111-12.  The same thing is happening now once again.  We have eliminated rehabilitation and the parole system from the penal system through the sentencing guidelines, and both judges and administrators (other than the Sentencing Commission) have lost all authority to later adjust a sentence that is too harsh.  The guidelines themselves do not take into account rehabilitation, “maturing standards of decency,” and other values like age, disability, marital status, and parenthood.  Perhaps one of these days an American political institution will recognize what we have created and begin again to make some adjustments, as the Warren Court did in the 1960’s and 1970’s.  But for the time being, we just have to live with a “mindlessly, harsh federal punishment scheme.”

June 25, 2010 in Implementing retroactively new USSC crack guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, June 17, 2010

Percy Dillon's loss is sure to be other future defendants' gain

Though I feel bad for Percy Dillon and other defendants hoping to get an extra benefit from the US Sentencing Commission's lowered crack guidelines, Percy's loss in the Supreme Court today will likely prove to be a good thing for lots of other federal defendants.

As the USSC noted in its amicus brief in Dillon (which Justice Stevens rightly described as "subtle threat"), a ruling for Percy Dillon would have led the Commission to be VERY chary about making any future guideline reductions retroactive. But now that the USSC can clearly limit the extent of benefit previously sentenced defendants can get from new retroactive guidelines, the USSC need no longer fear the consequences of making new improved guidelines retroactive.

Especially if the Sentencing Commission sometime soon gets around to fixing some of the most troublesome and unduly severe aspects of the drug, fraud and child porn guidelines, lots of defendants now serving long prison terms under those guidelines probably should send Percy Dillon a thank you note if the USSC goes on to make some future fixes retroactive to other defendants' benefit.

June 17, 2010 in Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS rules 7-1 against defendant in crack retroactivity case

Fittingly, the Supreme Court this morning has handed down its biggest federal sentencing ruling this Term with a decision against the defendant in Dillon just as the big annual US Sentencing Commission conference gets started. I will comment on the opinion later today, but I am certain that the US Sentencing Commisioners will be pleased with this outcome.

The opinion can be accessed here.

UPDATE: The opinion for the Court draws a clear (and I think justified) distinction between sentence modification proceedings and full sentencing. Once that is done, the Court does not find it too hard to explain why Booker's advisory remedy does not apply to modification proceedings.

June 17, 2010 in Implementing retroactively new USSC crack guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, June 11, 2010

Split Sixth Circuit ruling spotlights split over who can get resentenced under new crack guidelines

Within the next few weeks, the Supreme Court will hand down a ruling in the Dillon case dealing with the extent of a district court's authority to reduce sentences when a defendant is eligible for a reduction under the Sentencing Commission new reduced crack guideline.  But the Dillon case is unlikley to resolve or even address questions concerning just who is eligible for a reduction in the first instance, and this eligibility issue has lead to some circuit splits in a variety of contexts

An intriguing  new split opinion today from the Sixth Circuit in US v. Pembrook, No. 08-6452 (6th Cir. Jun. 11, 2010) (available here), spotlights some aspects of this debate over this eligibility issue. Here is how the majority opinion in Pembrook starts:

In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.

Here is how the dissent in Pembrook starts:

The Sentencing Guidelines should be interpreted, if the words can fairly be so read, to permit resentencing when a properly applied Guideline that affected the length of a sentence is later retroactively reduced. When two Guideline calculations were properly used at two different steps of the sentencing determination process to determine a defendant’s original sentence, no policy supports permitting resentencing only if the first, but not if the second, calculation would have been different under a retroactive amendment. It is hard to imagine why the Sentencing Commission would adopt such a policy.  The syntax of the operative policy statement language does not require such a limit; indeed, it cuts the other way.  Under the policy statement, there must have been a lowering of “the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).  The words most naturally mean “a guideline range [properly] applied to the defendant.”  The words do not require that there be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s foot steps out of bounds,” English syntax does not require that the rule apply only to the right foot or the left foot.  The clear meaning of “the player’s foot” is “a foot of the player.”  In short, because the Sentencing Commission retroactively lowered the Guideline range that the district court properly applied to Pembrook so as to affect his sentence, the requirements of the statute and the operative policy statement were fulfilled, and the district court had the authority to resentence Pembrook.

I have not given much attention to these issues as we await a ruling from the Supreme Court in Dillon.  But it will be interesting to see if SCOTUS will take up

June 11, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 31, 2010

Telling(?) distractions during Dillon SCOTUS oral argument

I have now had a chance to review quickly the transcript from yesterday's Supreme Court oral argument in Dillon, which can be accessed here.  I am eager to here reader reactions, and this piece in the Pittsburgh Post-Gazette, which is headlined "Justices hear appeal on drug penalty inequities," summarizes most of the highlights better than I could. My first cut reaction is that, at many stages, certain Justices seemed to be distracted by concerns that suggest that they may not be especially sypathetic to Percy Dillon's fate.

For example, Justice Ginsburg suggests that it would not be "fair" for Percy Dillon to get a chance to have his severe crack sentence impacted by Booker when "others whose sentence has become final cannot get into the court's door because they don't have the entering wedge" provided by the revision of the crack guidelines.  But this expressed concern for systemic "fairness" is itself driven by the Justices own disinclination to allow the Booker remedy to apply retroactively, and it also fails to deal with the fact that Dillon was originally subject to a unique form of unfairness because his original sentence was so inflated by the old severe crack guidelines.  The way Justice Ginsburg frames her concerns about fairness suggests she thinks Dillon should not get a "special" chance to get a true post-Booker assessment of sentencing justice.

March 31, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, March 30, 2010

Sentencing day at the US Supreme Court

This morning the Supreme Court will hear oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).

Because I was surprised that the Justices now took up the long-simmering issues in these two cases, I am chary about making any predictions about how the arguments will go. But I hope later this week to be able to offer commentary on what various Justices seem to be thinking in these cases. In the meantime, here are terrific previews of the cases from SCOTUSblog:

I welcome and encourage reader thoughts about either or both of these cases (especially now that comments seem to be working again).

March 30, 2010 in Implementing retroactively new USSC crack guidelines, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, March 28, 2010

Details on Dillon as SCOTUS oral argument approaches

Because there is so much that could be said about the crack guideline modification retroactivity issue that goes before the Supreme Court on Tuesday in the Dillon case, I am not sure where to start.  The case directly involves or implicitly raises issues of constitutional law, statutory doctrine, administrative powers and policy-based practicalities, with a splash of Booker and a hint of equity thrown in for good measure.  Helpfully, this new local piece, which is headlined "Cocaine sentencing inequity goes to top court: Supreme Court will hear Percy Dillon's plea for a substantial sentence reduction," reviews some of the basics effectively while also discussing the defendant whose fate will be before SCOTUS on Tuesday. 

March 28, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Tuesday, December 29, 2009

Seventh Circuit requires "some minimal explanation" for sentencing modification ruling

The Seventh Circuit has issued a notable little opinion today in US v. Marion, No. 09-2525 (7th Cir. Dec. 29, 2009) (available here), concerning a district court's obligations when ruling on a federal defendant's motion for a sentence reduction under 3852(c)(2). Here is the heart of the ruling:

Although ruling on a motion to reduce is not the same as imposing a sentence, we think that the reasoning behind requiring a brief statement of reasons at sentencing compels a similar requirement when deciding a motion to reduce. Some statement of the district court’s reasoning is necessary for this court to be able to meaningfully review its decision....

We think that a district court’s order on a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) should at least address briefly any significant events that may have occurred since the original sentencing. If the district court believes that nothing particularly noteworthy has changed concerning the basis for the defendant’s original sentence, some simple explanation to that effect will apprise both the defendant and this court of that fact.

Our opinion in this case should not be read to expand what is required of a district court when sentencing a defendant or considering a motion to reduce a sentence under § 3582(c)(2). We have no intention of counting words or applying some rigid formulation to statements of reasons, particularly on a motion to reduce a sentence.  The problem with the order here is not that the district court used a form order, or even that the order contained only a one-sentence explanation. The problem arises from the fact that it is impossible for us to ensure that the district court did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how it exercised that discretion.  Some minimal explanation is required.

December 29, 2009 in Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, December 07, 2009

Supreme Court grants cert on applicability of Booker in sentencing modifications!

I am surprised and pleased to report that the Supreme Court today announced that it will be reviewing another important federal sentencing issue this term: whether and how Booker impacts a court's sentencing authority in sentence modification proceedings.  Here are the basics from this report at SCOTUSblog:

The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence. The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

Other matters will now take me off-line for the next few hours, but I hope to comment on this surprising new sentencing grant later in the day.  In the meantime, I hope commentators will speculate about why SCOTUS took this particular case at this particular time.

UPDATE:  Here is the basic AP coverage of this grant in Dillon, and SCOTUSblog has helpfully posted the Third Circuit's opinion here and the cert petition here.  As DEJ notes in the comments, the defendant in Dillon has good, sypathetic facts, which perhaps explains why the Justices decided that he should get the golden ticket to come to the magical SCOTUS factory with an issue that has been pressed by perhaps hundreds of other defendants.

December 7, 2009 in Booker and Fanfan Commentary, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, December 02, 2009

New federal sentencing data from the US Sentencing Commission

I am pleased to discover that the US Sentencing Commission has some fresh new sentencing data now up on its website.  Here are links to the new data runs, with descriptions from the USSC's website:

Fourth Quarter FY09 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the fourth quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2009)

Data on Retroactive Application of the Crack Cocaine Amendment:  A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data in this report represents those motions decided by the courts through November 10, 2009 and for which data was received, coded, and edited by the Commission as of November 17, 2009.

I hope to find the time and energy before too long to pour through this new data and report on anything special that catches my eye.  Readers are welcomed and encouraged, of course, to use the comments to the same end.

December 2, 2009 in Detailed sentencing data, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Saturday, October 31, 2009

Senator Durbin responds to Washington Post editorial opposing crack/powder parity

The Washington Post has printed this letter from US Senator Dick Durbin, which responds to the Post's editorial (discussed here) that criticized Durbin's proposed legislation to eliminate the sentencing disparity between crack and powder cocaine.  Here are excerpts:

The editorial wrongly argued that crack is more addictive and associated with more violence than powder cocaine. It is that flawed logic that justified the original sentencing disparity.

Countless studies have shown that there's little difference in the physiological impact of crack and powder cocaine. The American Medical Association reports that "the physiological and psychoactive effects of cocaine are similar" regardless of whether the form is crack or powder.

Furthermore, the U.S. Sentencing Commission report you cited actually found that 10 percent of crack offenders were involved in violence -- not 25 percent, as the editorial asserted, using a different definition of "violence" -- while 6 percent of powder offenders were involved in violence. That 4-percentage-point difference hardly justifies a disparity in mandatory minimum sentences.

The editorial also failed to note that my bill would significantly increase penalties for violent and large-scale drug traffickers, refocusing limited federal resources on the worst offenders.

October 31, 2009 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, October 29, 2009

Washington Post editorial argues against completely eliminating crack/powder sentencing disparity

In this new editorial, which is headlined "The right sentence: As Congress weighs the cocaine sentencing disparity, it should remember crack's dangers," the Washington Post comes out against equalizing the sentences for crack and powder cocaine.  Here is the heart of the Post's pitch:

The Justice Department has announced its support for reducing crack penalties to mirror exactly those for powder.  A bill recently introduced by Sen. Richard J. Durbin (D-Ill.) would codify this 1-to-1 ratio into law.  Supporters of such a move point to the racial disparities between arrests for crack and powder, and argue that anything less than parity would be viewed by African Americans as a decision to continue targeting black men for tougher sentences.  They also note that studies have shown that the addictive nature of crack has been significantly exaggerated and that no other drug carries with it different penalties depending on how it is consumed.

But appearances alone cannot justify the move contemplated by the Justice Department and the Durbin bill.  A 2007 report from the U.S. Sentencing Commission shows that smoking crack delivers a faster, more intense high than snorting powder and that this high is more short-lived, thus compelling most crack users to seek additional doses of the drug.  The differences in addiction rates between crack and powder are not enormous, but they are real, and the study also notes that crack users often experience faster rates of physical deterioration than do those who consume powder.  The report notes that roughly one-fourth of crack offenders are associated with violence, and that this rate exceeds that for powder cocaine offenders.  As in the 1980s, predominantly African American communities continue to bear the brunt of the crime and addiction brought on by this awful drug.

These facts suggest that there should be some difference in the penalties for crack and powder cocaine, but how much?  This is a difficult question to answer with precision, so perhaps the best solution would be to eliminate the mandatory minimums for both crack and powder and build into the sentencing guidelines tougher penalty ranges for crack that judges could apply on a case-by-case basis.

Like most efforts to assess a complex issue in a short space, this Post editorial is more confusing than compelling.  For starters, the federal sentencing guidelines already have much tougher penalty ranges for crack that judges must apply on a case-by-case basis after Booker.  Second, the fundamental problem with both crack and powder sentencing is an undue reliance on drug weights rather than offense role in setting sentencing ranges.  Third, given the apparent "success" of the recent retroactive reduction in crack sentences, it is a shame that the Post relies more on tired old debates than new real-world developments in assessing this important issue.

October 29, 2009 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines | Permalink | Comments (6) | TrackBack

Tuesday, October 27, 2009

Sixth Circuit officially joins bulk of other circuits declaring limits on 3582(c) sentence modifications

The Sixth Circuit today describes effectively the current state of the circuit law concerning sentence modifications pursuant to 18 U.S.C. § 3582(c)(2) in US v. Washington, No. 09-5110 (6th Cir. Oct. 27, 2009) (available here).  Here is how the majority opinion in Washington starts:

Defendant Errol Eugene Washington appeals the district court’s order denying, in part, his motion to reduce and modify his otherwise valid sentence pursuant to 18 U.S.C. § 3582(c)(2).  Washington’s appeal presents an issue of first impression in our circuit: whether the district court, in modifying a sentence pursuant to § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005), to reduce a sentence beyond the retroactive United States Sentencing Guidelines amendment range.  For the reasons explained below, we hold that the district court does not have such authority and therefore affirm the judgment of the district court.

For some reason that she fails to explain, Judge Moore does not join the majority opinion in Washington and just concurs separately.

October 27, 2009 in Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Monday, September 21, 2009

A (questionable?) Eighth Circuit reversal of a reduction in crack guideline retroactivity case

The implementation of the retroactive crack guidelines has produced a lot of federal circuit court rulings, though most have involved a circuit affirming a district court's decision to deny a reduction to a defendant.  But the Eighth Circuit has a ruling today in US v. Collier, No. 08-3306 (8th Cir. Sept. 21, 2009) (available here), in which a panel, upon the  government's appeal reverses a district court's decision to grant the defendant a sentencereduction based on the crack retroactivity provisions.

The particulars of Collier are complicated, but the case especially draws my attention because it would seem ripe for a viable cert petition because the defendant (a) seems relatively sympathetic, (b) prevailed in the district court by getting a lower sentence, and (c) had his reduced sentenced reversed by the Eighth Circuit upon the government's appeal.  As some astute readers may realize, this "abc formula" produced cert grants in Claiborne and Gall and Spears, and perhaps Collier might file a petition to see if he can get the formula to work for him as well.

September 21, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (9) | TrackBack

Thursday, April 30, 2009

Tenth Circuit rejects novel argument about crack retroactivity rules

The Tenth Circuit today in US v. Dryden, No. 08-3310 (10th Cir. April 30, 2009) (available here), rejects a defendant's novel effort to get the benefit of the new retroactive crack guidelines. Here is how it starts:

After the United States Sentencing Commission decided to give retroactive effect to its recent amendment to the crack-cocaine guidelines, Edward Dryden moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence.  The district court denied the motion, agreeing with the government that a reduction would be barred by the Commission’s policy statement in USSG § 1B1.10(a)(2) , because the amended guideline would not have reduced Mr. Dryden’s guideline sentencing range. Mr. Dryden appeals, raising the novel argument that the Commission’s policy statement results from an unconstitutional delegation to the Commission of legislative authority to restrict the jurisdiction of federal courts.  See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

April 30, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Monday, April 13, 2009

Eleventh Circuit rejects arguments for a right to counsel at crack sentence modification proceedings

Addressing an interesting right to counsel issue, the Eleventh Circuit today in US v. Webb, No. 08-13405 (11th Cir. April 13, 2009) (available here), concludes that "there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or hearing [and thus] the decision to appoint an attorney is left to the discretion of the district court."  I believe that this Webb ruling is the first circuit decision on this right to counsel issue in the application of the US Sentencing Commission's recent reduction of crack guideline sentences, but the Eleventh Circuit says that other circuit have come to the same conclusion in earlier decisions:

The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus.  See United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996) (per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995).  As the Fifth Circuit noted, a § 3582(c)(2) motion “is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines,” rather than “a challenge to the appropriateness of the original sentence.” Whitebird, 55 F.3d at 1011.  A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing. See id.; see also Townsend, 98 F.3d at 512–13 (agreeing with Whitebird’s rationale).  Additionally, we decline to find that the Fifth Amendment provides a mandatory right of counsel for all § 3582(c)(2) motions as a matter of fundamental fairness. The Federal Rules of Criminal Procedure permit courts to hold § 3582(c)(2) hearings without defendants being present. See Fed. R. Crim. P. 43(b)(4). Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel.

A footnote at the end of this discussion adds this important point that may help mitigate the practical impact of this ruling in many settings:

We note that courts have the discretion to appoint counsel.  See Whitebird, 55 F.3d 1011.  Given the array of factors that courts now must consider in deciding whether to reduce a sentence under § 3582(c)(2), there may be instances in which equitable concerns would make the appointment of counsel appropriate to ensure a just outcome.  See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (appointing counsel in § 3582(c)(2) proceeding “in the interest of justice” and noting that the “new complexities” created by changes to the sentencing guidelines might necessitate reconsideration of whether there should be a statutory or constitutional right to counsel in all such cases).

April 13, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Sunday, April 05, 2009

Split Third Circuit debates crack guideline retroactivity following binding sentencing plea

In a complicated ruling on Friday, a divided Third Circuit in US v. Sanchez, No. 08-1847 (3d Cir. April 5, 2009) (available here), seemed to create a circuit split on whether a district court can reduce a previously imposed crack sentence based on a binding plea agreement.  The first paragraph of Judge Roth's dissent from the Sanchez majority provides a flavor of the issues involved:

No good deed goes unpunished.  The majority provides for resentencing under § 3582(c) for criminal defendants who go to trial – but not for those who enter into binding plea agreements.  For the majority, the binding nature of such agreements justifies a difference in the treatment between the offenders who choose to go to trial and those who choose to plead guilty thus saving judicial and governmental resources.  I find this distinction false because a jury verdict is also binding on the parties. Accordingly, I believe that the binding effect of the factors leading up to the judgment should not preclude the application of § 3582(c).  For these reasons, I respectfully dissent from the majority opinion and suggest that defendants sentenced under binding plea agreements should be permitted to move for resentencing based on a change in the Guidelines that would affect the basic elements that led up to the final plea agreed upon.

For various reasons, Sanchez is not likely a good cert vehicle.  But the ruling spotlights another challenging legal issue that has arisen in the retroactive implementation of the new crack guidelines.  It will be interesting to see if the Supreme Court ever takes up any cases involving resentencings under § 3582(c).

April 5, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Monday, March 23, 2009

A strong pitch to SCOTUS to have Booker apply to crack sentence reductions

Late last week, a prominent group of SCOTUS gurus filed a cert petition in US v. Dunphy making a full-throated argument for judges to have broad resentencing authority when ruling on motions to reduce previously imposed crack sentences.  The cert petition can be downloaded below, and here is its summary statement of reasons for granting the writ:

Federal courts across the country are divided over whether federal district courts must treat amended sentencing guidelines ranges as binding when imposing new sentences under 18 U.S.C. § 3582, or whether this Court’s holding in United States v. Booker, 543 U.S. 220 (2005), requires that they be treated as only advisory.  This question is important and arises frequently, particularly in the context of the amended guidelines for crack cocaine offenses.  This is such a case and is an ideal vehicle for resolving the split of authority.

The Fourth Circuit’s holding that district courts must treat the Guidelines as binding in 18 U.S.C. § 3582 proceedings also is wrong.  This Court held in Booker that the Guidelines violate the Sixth Amendment when they require a longer sentence than is otherwise allowed based on the elements of the crime of conviction. Id. at 244.  Such is the case here. Furthermore, treating the Guidelines as binding when constructing a new sentence flouts Booker’s mandate that binding guidelines are “no longer an open choice.”  Booker, 543 U.S. at 263; accord United States v. Spears, 129 S. Ct. 840, 842 (2009) (per curiam) (Guidelines are “advisory only”) (quoting Kimbrough v. United States, 128 S. Ct. 558, 560 (2007)).

It is no answer to claim, as the Fourth Circuit does and the Sentencing Commission suggests, that proceedings under Section 3582 do not constitute “full” resentencings. Pet. App. 8a-9a, 11a, 15a.  That is just a label. District courts impose new sentences under Section 3582 the same way they conduct other resentencings. And whenever a court reopens a sentence and constructs a new one, it must do so in accordance with the law that exists at the time the new sentence is imposed, not just with (retroactive) sentencing guidelines.  Booker is the law; this Court should instruct the federal courts of appeals again that they must follow it.

Download Dunphy Cert Petition

March 23, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (5) | TrackBack

Wednesday, March 04, 2009

Ducan Fanfan loses appeal seeking greater crack sentence reduction

Ducan Fanfan — who, in a future "law nerd" version of Trivial Pursuit, will be the answer to the question "What was the name of the defendant in the companion case to US v. Booker?" —  has made some more appellate law news today as a result of the First Circuit's work in US v. Fanfan, No. 08-2062 (1st Cir. Mar. 4, 2009)(available here).  Here is how Fanfan's latest legal loss begins:

After much litigation, Appellant Ducan Fanfan's sentence for a drug offense involving crack cocaine became final.  United States v. Fanfan, 468 F.3d 7 (1st Cir. 2006), cert. denied, 549 U.S. 1300 (2007).  On July 9, 2008, Fanfan sought an adjusted sentence under 18 U.S.C. § 3582(c)(2) in light of a subsequent amendment to the guidelines that effectively reduced the guideline range for certain crack cocaine offenders. U.S.S.G. Amendment 706 (effective Nov. 1, 2007). The district court granted this request and imposed a sentence within the new guideline range.  On the same day that the district court allowed his request, Fanfan filed a motion for reconsideration, asking the court to instead impose a variant sentence below the new guideline range based on the district court's Kimbrough discretion.  The district court refused and, in citing another district court decision, United States v. Julien, 550 F. Supp. 2d 138 (D. Me. 2008), indicated that it did not believe it had the legal authority to impose such a variant sentence in the § 3582(c)(2) context. Fanfan appeals this conclusion.  After careful consideration, we affirm.

March 4, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Sunday, February 15, 2009

Latest official data on implementation of retroactive crack guidelines

The US Sentencing Commission has available here the latest updated data on the retroactive application of its revised crack sentencing guidelines. Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data in this report represents those motions decided by the courts through January 21, 2009 and for which data was received, coded, and edited by the Commission as of January 26, 2009.

As I have said before, I continue to be impressed and somewhat surprised by how few problems there have been applying the new crack guidelines retroactively, especially given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.

February 15, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack