Sentencing Law and Policy

Notable DC Circuit ruling on Fifth and Sixth Amendment rights

A busy schedule kept me from noticing an interesting opinion by the DC Circuit late last week in US v. E-Gold, Ltd., No. 07-3074 (DC Cir. April 11, 2008) (available here).  Though focused on an array of issues in a civil forfeiture context, the conclusion highlights why the ruling might have broader implication than it might seem upon first look:

In short, we hold that where the government has obtained a seizure warrant depriving defendants of assets pending a trial upon the merits, the constitutional right to due process of law entitles defendants to an opportunity to be heard at least where access to the assets is necessary for an effective exercise of the Sixth Amendment right to counsel.  We need not determine, nor do we determine, whether the due process rights of the defendants compel such a hearing when the assets are not necessary to obtaining counsel of choice.

I am too distracted with other matters this week to figure out whether E-Gold might be a hidden nugget (or perhaps fool's gold) for those interested in expanded Fifth and Sixth Amendment rights.  Perhaps readers can do the hard work of talking through whether there are golden constitutional possibilities in the comments.

Interesting debate over what a PSR is all about

As highlighted here at How Appealing, the Ninth Circuit yesterday rejected rehearing en banc of decision immunizing from prosecution under 18 U.S.C. sec. 1001 false statements made by a criminal defendant to a probation officer preparing that defendant's presentence report.  The order denying rehearing en banc has a concurrence and two dissents has a lot of interesting talk about what a PSR is all about.

This case would seem to have cert potential if the government decides to try to take this issue to the Justices.

Fourth Circuit demands consideration of acquitted conduct (in an unpublished order)

Though I wish the ruling was just an April Fool's joke, I fear the a Fourth Circuit opinion today in US v. Ibanga, No. 06-4738 (4th Cir. Apr. 1, 2008) (available here), is all too real.  In Ibanga, the Fourth Circuit in an unpublished per curiam decision holds that a sentencing court "committed significant procedural error, ... by categorically excluding acquitted conduct from the information that it could consider in the sentencing process."  In other words, Ibanga essentially holds that a district court must consider acquitted conduct at sentencing even after Blakely and Booker.

Regular readers may recall the terrific district court opinion in Ibanga (discussed here), in which District Judge Walter Kelley thoughtfully explained why he thought that acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  Because Judge Kelley wrote such a thoughtful opinion that focused on the text and precise instructions of 3553(a), I had hoped the Fourth Circuit would uphold the decision as a sound exercise of post-Booker discretion.  Instead, the Fourth Circuit, without showing enough courage to deliver a full published and signed opinion, just smacked the case back to Judge Kelley with a cursory opinion that starts this way:

This appeal by the government arises out of a drug trafficking and money laundering prosecution of a group of individuals that included Michael Ibanga.  The jury convicted Ibanga of conspiracy to launder money and acquitted him of the drug trafficking charges.  Nonetheless, the district court found at sentencing that the government had proven by a preponderance of the evidence that Ibanga had trafficked in 124.03 grams of methamphetamine (meth).  Although acquitted conduct proven by a preponderance of the evidence may be taken into account in sentencing, the district court sentenced Ibanga to a prison term that did not reflect any drug trafficking.  The government appeals Ibanga’s sentence, arguing that the district court contravened 18 U.S.C. § 3661 by categorically refusing to consider acquitted conduct -- Ibanga’s drug trafficking found by the court -- in determining his sentence.  Because it appears that the district court applied a standard that would categorically exclude consideration of acquitted conduct in every case, we vacate Ibanga’s sentence and remand for resentencing.

Because I think the Fourth Circuit mis-read's Judge Kelley's work AND because this case clearly justifies a lot more attention and analysis than the per curiam panel opinion provides, I hope that Ibanga will seek en banc review and cert if necessary. 

It is bad enough that circuits are always finding reasonable a district court's discretionary decision to enhance greatly a sentence based on acquitted conduct; it is really disheartening that the Fourth Circuit in Ibanga now finds unreasonable a district court's discretionary decision not to enhance greatly a sentence based on acquitted conduct.  Am I just crazy to believe that the rich discussion of the importance of jury findings in Blakely and Booker should have some resonance in modern federal sentencing?

LA Times coverage of SCOTUS acquitted conduct dodge

I noted in this post that Supreme Court yesterday denied cert in the Hurn acquitted conduct case and in a few other acquitted conduct cases.  Providing a useful follow-up, SCOTUS reporter David Savage has this new piece in the Los Angeles Times headlined "Judges can still punish acquitted defendants."  Here is how the article starts:

The Supreme Court declined Monday to reconsider a legal rule that might surprise most Americans: Judges can punish defendants for certain crimes even after a jury has acquitted them of those charges.

In recent years, the justices have described the right to jury trial as one of the bedrock principles of American law.  At the same time, they have been unwilling to say that a jury's not-guilty verdict on some charges means the defendant cannot be punished.  Instead, the court has said judges may take into account "acquitted conduct" when they decide on a prison term.

The case of Mark Hurn of Madison, Wis., provides a stark example of the rule.  Hurn was given an additional 15 years in prison for possessing crack cocaine, even though a jury acquitted him of the charge.  He was convicted of having powder cocaine in his house, a charge that would warrant between two and three years in prison under federal sentencing guidelines. But he was sentenced to nearly 18 years in prison, as though he had been convicted on both counts.  "This was an extraordinary increase," said Elizabeth Perkins, a lawyer in Madison who filed his appeal. "Allowing a sentencing judge to disregard the verdict of the jury is very disappointing."

As regular readers know, this is an issue I find very interesting and important.  And I remain hopeful that the Sixth Circuit, which will take on these issues soon in the en banc case White, will issue an interesting and important decision that may finally force the Justices to connect its Blakely rhetoric to federal sentencing realities.

Some related posts on acquitted conduct enhancements after Booker:

• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Sixth Circuit going en banc on acquitted conduct enhancements!
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• A terrific district court opinion on acquitted conduct
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing
• New academic paper on acquitted conduct after Booker

How do sophisticated lawyers negotiate sentencing terms?

The WSJ Law Blog here and here provides effective coverage and links concerning famed lawyer Mel Weiss's decision to enter a deal to agree to plead guilty in a case alleging improper kickbacks.  The plea deal can be accessed here, and it is an interesting read. 

I was particularly interested in paragraph 15, which sets forth the agreed upon sentencing terms.  And for some reason the parties came up with a range of 18 to 33 months imprisonment.  I think they got these terms from the top and botton of a range of guideline ranges, but it is fun to just speculate about how the big-time lawyers on both sides approached this part of the plea negotiations.

New academic paper on acquitted conduct after Booker

As regular readers know, I have strong feelings about acquitted conduct sentencing enhancements after Blakely and Booker (and these feelings are surely impacted by the fact that I have beeing involved in a lot of post-Booker acquitted conduct appellate litigation).  Consequently, I plan to read with great interesting this new piece I noticed on SSRN, titled "'Doing Time'.... After the Jury Acquits: Resolving the Post-Booker Acquitted Conduct Sentencing Dilemma."  Here are portions of the article's (long) abstract:

For the past two years, post-Booker cases have revealed deep contradictions between three important, but directly competing, constitutional-policy imperatives, i.e. (a) defining the limits of Congress' power to establish uniform sentencing policy and procedures, to eliminate or reduce apparent disparities in sentencing between judges; (b) re-establishing the system of individuated, case-specific sentences by permitting broader judicial discretion in sentencing; and (c) protecting the Sixth Amendment right to jury-found facts as a bulwark against governmental over-reaching, in the context of judicial decision-making.

Within the last several months, the [Supreme] Court decided Rita v. United States and Gall v. United States, which go a long way in sorting out the proper relationship between the first two policy imperatives above. However, the proper relationship between judicial discretion in sentencing and the Sixth Amendment right to jury-determined facts in sentencing, established in Apprendi and Blakely, is yet to be definitively addressed by the Court, post-Booker....

This article examines the unresolved, post-Booker contradiction between judicial discretion in sentencing and the Sixth Amendment right to jury-found facts, by considering the circumstance in which the contradiction is most plain, the judicial use of acquitted conduct to impose a sentence based on facts the jury has considered, and rejected, in an acquittal.  The article advances the position that the minority view expressed in lower court cases, that acquitted conduct may never be used by a sentencing court in light of Apprendi and Blakely (at least with respect to facts related to proof of the elements of the acquitted offense), is essentially correct as a matter of principle, and simple logic. However, the broad discretion entrusted to the sentencing court by the remedial measures described in Booker, Rita and Gall, requires principled line-drawing, if the jury is not to be supplanted by judicial fact-finding in sentencing, in apparent contravention of the Apprendi/Blakely/Booker Sixth Amendment rationale.

Some related posts on acquitted conduct enhancements after Booker:

• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Sixth Circuit going en banc on acquitted conduct enhancements!
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• A terrific district court opinion on acquitted conduct
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing

Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration

In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration.  Here is the opinion's key conclusion:

[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes.  As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42....  We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.

Download fushek_opinion.pdf

More on the Snipes jury outcome and acquitted conduct enhancements

Following up my post on Friday's verdict in the Welsey Snipes tax evasion trial, I received this notable e-mail from a lawyer who had a criminal trial before the federal district judge in charge of Snipes' sentencing fate:

Snipes - re: acquitted conduct

FYI - I had a jury trial before Judge Hodges (the Snipes case judge) a couple of years ago. Split verdict.  Jury acquitted the defendant of the most serious charge and convicted of a less serious one.  Judge Hodges pounded the defendant with the acquitted conduct and imposed a Guidelines sentence that was identical to the one defendant would have received had he been convicted on all counts. The judge's decision made the jury trial seem less than pointless. I often wonder how that jury would feel if they knew that their deliberations were meaningless.

Some posts on acquitted conduct sentencing enhancements:

• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• A terrific district court opinion on acquitted conduct
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?

Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker.  Together with a terrific group of lawyers from Proskauer Rose working pro bono, I helped put together an amicus brief that we just sent off to the Sixth Circuit which seeks to make a number of refined statutory arguments about guideline enhancements based on acquitted conduct.  The full brief can be downloaded below, and this is how it starts:

Sentencing range enhancements based on facts alleged in charges of which a defendant has been acquitted (“acquitted conduct”) have long been among the most controversial features of the Federal Sentencing Guidelines, in part because acquitted conduct enhancements effectively nullify the jury’s determination in a criminal case. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court addressed this issue in a limited way when it held that consideration of acquitted conduct at sentencing does not violate the Double Jeopardy Clause. But now that more recent Supreme Court rulings have stressed the constitutional importance of jury determinations in the sentencing enterprise, the constitutionality of acquitted conduct enhancements under the Fifth and Sixth Amendments is questionable.  The supplemental brief for appellant Mr. White argues in detail that acquitted conduct enhancements violate the Constitution.

In addition to any constitutional infirmities, acquitted conduct enhancements raise distinct statutory concerns.  United States v. Booker, 543 U.S. 220 (2005), and its progeny stress that, because the Guidelines are now advisory, the directions that Congress set forth in the Sentencing Reform Act (SRA), and particularly the text of 18 U.S.C. § 3553(a), provide the ultimate instructions for sentencing decision-making by district and appellate courts.  Acquitted conduct enhancements in some cases — especially when they significantly affect the applicable Guideline range and the ultimate sentence imposed — may disserve the statutory purposes of sentencing that Congress enumerated in 18 U.S.C. § 3553(a) and sought to vindicate in the SRA.

In this case, where Mr. White’s Guideline range was more than doubled on the basis of acquitted conduct, the District Court did not adequately examine whether the sentence complied with the SRA and, in particular, the statutory purposes of sentencing.  Instead, the court reflexively treated acquitted conduct in the same way as convicted conduct without properly considering whether the enhancement would promote respect for the law and provide just punishment for the convicted offense.  The sentence should, therefore, be vacated and remanded.

Download WhiteAmicusBrief.pdf

Fourth Circuit vacates above-guideline sentence because of notice problems

Though the Supreme Court now has a post-Booker notice issue on its docket with Irizarry (basics here), the Fourth Circuit apparently could not wait before vacating an above-guideline sentence today in US v. Fancher, No. 06-4913 (4th Cir. Jan. 17, 2008) (available here).  Here is how the opinion starts:

Johnny Ray Fancher appeals the 480-month sentence imposed after he pleaded guilty to one count of receiving child pornography. We conclude that the district court did not provide sufficient notice that it was considering an above-Guidelines sentence, and we therefore vacate Fancher’s sentence and remand for re-sentencing.

Quite a resentencing Day in the Second Circuit

The Second Circuit covers some notable and important procedural ground today in US v. Day, No. 05-4285 (2d Cir. Jan. 15, 2008) (available here).  The per curiam Day opinion starts this way:

Christopher Campbell Day pled guilty to conspiring to distribute and possess with intent to distribute over one thousand kilograms of marijuana.  He appeals from a memorandum and order of the United States District Court for the Eastern District of New York (Platt, J.) resentencing him, after a remand, to the same term of 180 months’ imprisonment.  By resentencing Day without providing notice to Day or his counsel, the district judge violated Day’s right to be present at resentencing and his right to notice that the court intended to impose an adverse non-Guidelines sentence. In addition, by providing only a written sentencing explanation in the form of a memorandum and order, the district judge neglected 18 U.S.C. § 3553(c), which requires a sentencing judge to state “in open court” the reasons for imposing a particular sentence.  Consequently, we vacate the sentence and remand the case for resentencing by a different judge. Reassignment is appropriate because the district judge may reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing proceeding.  Moreover, resentencing without eliciting the views of the defendant or the prosecutor bespeaks a lack of receptivity to their views and arguments.

Supplemental brief in Sixth Circuit en banc case on acquitted conduct enhancements

As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker.  Earlier this week, cousel for the defendant in White filed his supplemental brief (available below).  This new brief make a number of nuanced arguments about the illegitimacy of sentences based on acquitted conduct in light of old and new Supreme Court decisions. 

Especially for anyone involved in a case in which acquitted conduct enhancements may be involved, this supplemental brief is a must-read.

Download white_en_banc_supplemental_brief.pdf

Rapid appeal for victims' rights comes before Tenth Circuit

As detailed in this prior post, last week a federal district court rejected a claim, based on the Crime Victims' Rights Act (CVRA), made by the parents of a woman killed in a shooting spree that they be deemed victims of the crime of a defendant who illegally sold the handgun used by another to kill their daughter.  The parents seek victim status in order to be able to speak at the sentencing of the gun sale defendant and so that they can seek restitution from this defendant.  (Notably, the actual shooter was killed during his rampage, and the illegal gun sale took place quite some time before the shooting.)

Notably, the CVRA has specific provisions authorizing an immediate appeal (technically in the form of a petition for a writ of mandamus) and requiring an immediate ruling on these kinds of disputes over victims' rights.  Thus, as this new Salt Lake Tribune article details, the parents have now asked the Tenth Circuit "to declare their daughter a victim in a crime that took place months before her death — the illegal sale of a handgun to the shooter."

Intriguingly, former-judge, now-professor Paul Cassell is representing the parents in the Tenth Circuit, and he is arguing that the district judge (his former colleague) erred when concluding that the connection between the criminal sale of the firearm and the shooting was too attenuated to designate the daughter as a victim of the gun sale crime under the CVRA.  The petition to the Tenth Circuit (which can be accessed here) makes a number of interesting points about both the CVRA and legal causation principles.  Indeed, because this case turns principally on causation issues, the forthcoming ruling from the Tenth Circuit should be of great interest not only to victims' rights advocates, but also anyone interested in bringing tort suits against gun manufacturers and gun sellers from harms resulting from their guns.

Among the many fun aspects of this litigation is how quickly we will get a ruling from the Tenth Circuit.  A provision of the CVRA, 18 U.S.C. § 3771(d)(3), the Tenth Circuit must rule in this matter within 72 hours.  That provision also requires that, if relief is denied to the victim, the "reasons for the denial shall be clearly stated on the record in a written opinion" (although it is unclear whether this written opinion has to be handed down within the 72-hour period for a circuit ruling).

Because the CVRA is such a notable and distinctive piece of legislation, federal court and legislation gurus should also be very interested in this case.  For example, here are just a few late-night structural questions that came to mind as gave pondered this speedy litigation:

1. Does Congress clearly have the power to demand that a circuit court issue a decision within 72 hours?  Does the SG's office have an obligation (or even a right) to raise this concern?
2. Are the "rapid return" provisions of the CVRA even applicable when disputed legal question is whether a particular person is even covered by the CVRA?  Does the SG's office have an obligation (or even a right) to raise this concern?
3. If a Tenth Circuit panel denies relief and en banc review and/or cert review is sought, should courts continue to feel an obligation to "fast-track" this litigation?
4. Why haven't these issues come up a lot more in the 3+ years since the CVRA's enactment?

More on Irizarry and notice requirements after Booker

Though lost in all the death penalty action, last Friday the Supreme Court granted cert on an important post-Booker issue in Irizarry v. United States (06-7517).  SCOTUSblog here provides the opinion below and the cert papers, and this is the question presented as set forth by the government's brief in opposition:

Whether Federal Rule of Criminal Procedure 32 requires a district court to give the parties advance notice before imposing a sentence outside the applicable advisory Sentencing Guidelines range based on the criteria in 18 U.S.C. 3553(a), when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties’ prehearing submissions.

As regular readers know, this issue has sharply divided circuit courts and there are pretty sound arguments to be made on both sides of this issue in light of Booker's transformation of the guidelines from mandatory to advisory. 

Intriguingly, though, it seems that both the defendant here and the government believe that Rule 32 should be read to require a district court to give advance notice to the parties about possible grounds for imposing a non-guideline sentence.  Thus, it is unclear whether and how the Justices will get briefing in support of the position that no notice is required (though these arguments are pretty well developed in lower court opinions).

Some related posts on this issue in Irizarry:

• First Circuit says Rule 32(h) notice applies to variances
• Second Circuit jumps into Rule 32 split
• Third Circuit deepens split on variance notice issue
• Fifth Circuit brings breaks equipoise on post-Booker Rule 32(h) debate
• Sixth Circuit adds to split on Rule 32(h)
• Eleventh Circuit deepens Rule 32(h) circuit split

Fascinating case about victim rights at sentencing

The Salt Lake Tribune has this new article reporting on a fascinating ruling regarding victim rights at sentencing. The piece is headlined "Trolley rampage: Parents can't speak at sentencing; Judge rules daughter is victim of shooting spree, not handgun case," and here is how it begins:

A judge on Thursday ruled the parents of a woman killed in the Trolley Square rampage cannot speak in court when the man who illegally sold the handgun used to kill their daughter is sentenced. 

Sue and Ken Antrobus had asked that their daughter be declared a victim in the case of Mackenzie Glade Hunter, who has pleaded guilty to supplying gunman Sulejman Talovic with the .38-caliber Smith & Wesson that fired the fatal shot. That designation would allow them to speak as representatives of their daughter, Vanessa Quinn, when Hunter is sentenced on Jan. 14, and to describe the devastating impact of her death.

U.S. District Judge Dale Kimball noted that Quinn and her parents are "undoubtedly" victims of Talovic's shooting spree.  However, federal law does not consider them victims of the gun sale that took place eight months before Quinn was killed, the judge said. "While the court does not want to minimize in any way the harm suffered by those who were killed, injured, or had loved ones killed or injured by Talovic, that harm is not sufficiently connected to Hunter's offense of unlawfully selling a firearm to a minor for this court to consider Hunter's actions to be the direct and proximate cause of the harm," Kimball wrote in his decision.

Kimball also denied the Antrobuses' request for information in a presentence report to bolster their argument that Hunter should get a 99-month sentence, and a request for $107,000 in restitution for funeral expenses and lost income they had hoped to put into the Vanessa Quinn Scholarship Fund.

Some related posts:

• Restitution, victim rights and judicial activism
• Notable media coverage of victims' rights
• Extensive FSR coverage of victims at sentencing and the CVRA
• Ninth Circuit discusses victim's right to allocute at sentencing
• Interesting opinion on the right of victims to allocute at sentencing
• Shaming, remorse, apologies and victims
• Some reasons why victims' rights can and should be progressive
• A telling accounting of how criminal justice resources are allocated
• Giving voice to victims during NCVRW

Split Seventh Circuit decision on an appeal waiver

A notable Seventh Circuit panel, composed of Chief Judge Easterbrook and Judges Posner and Wood, splits over enforcing a plea with an appeal waiver in US v. Sura, No. 05-1478 (7th Cir. Jan. 2, 2008) (available here).  Writing at great length for the majority, Judge Wood finds a way to let the defendant out of his plea.  Chief Judge Easterbrook is not impressed with the majority's work, and he minces few words in explaining why.

Intriguing Third Circuit sentencing loss closes out 2007

Though federal defendants had some big sentencing wins in the US Supreme Court with Gall and Kimbrough at the end of 2007, it is perhaps fitting that the year ends with a circuit loss for a defendant in US v. Williams, No. 05-4153 (3d Cir. Dec. 31, 2007) (available here).  In Williams, a Third Circuit panel splits over whether the defendant breached his plea agreement by arguing for a criminal history departure: the majority holds that he did and remands for resentencing before a new sentencing judge; the dissent complains that "here there was no breach in arguing for a guideline departure on the criminal history and defendant presented his argument for a variance and mitigation under the guidelines with the permission of the District Court."

Both opinions in Williams make for interesting reading, and any circuit ruling about sentencing and plea agreements are consequential given the frequency of pleas with stipulated sentencing terms.  In this context, I found especially notable the dissent's expression of concern by enforceability of certain plea terms in the wake of Booker:

I must also question whether a plea agreement to forgo argument on a crucial phase of sentencing, consideration of the § 3553(a) factors, should be enforceable.  To deny the sentencing judge the ability to carry out his statutory duty and responsibility through consent of the parties seems to undermine the sentencing procedure Congress has mandated.  The sentencing judge in this case chose to hear argument under § 3553(a), a ruling that was responsible and proper.

I have argued in a number of prior posts that Booker might cast new doubts on the validity of appeal waivers and other plea agreement terms that can undercut the policies reflected in the Sentencing Reform Act.  To my knowledge, however, this dissent passage presents the first judicial suggestion that some plea terms might be unenforceable.

Intriguing Tenth Circuit opinion involving victim impact letter

The Tenth Circuit has an interesting opinion today in US v. Rakes, No. 06-4208 (10th Cir. Dec. 26, 2007) (available here) covering a variety of plea and sentencing issues.  Here is how it begins:

Joe Rakes challenges his conviction and resulting sentence arising from an alleged conspiracy to impede the investigation and prosecution of a white supremacy group, the Soldiers of Aryan Culture.  Specifically, he argues that (1) the evidence presented at trial was insufficient to establish a conspiracy between him and another participant in the alleged scheme; (2) the district court improperly rejected his plea agreement based on an undisclosed victim impact letter; and (3) the district court applied the wrong provision of the United States Sentencing Guidelines (“Guidelines”) in calculating his sentence.  While none of these arguments is without force, we ultimately conclude that none merits reversal under our governing standards of review.

Split Second Circuit decision on breached plea agreement

A split Second Circuit panel today issued a lengthy decision in US v. Griffin, No. 05-4016 (2d Cir. Dec. 21, 2007) (available here), dealing principally with the breach of a plea agreement surrounding an acceptance of responsibility adjustment.  Here is how the majority opinion starts:

While there are aspects of this case that may implicate complicated and difficult issues at the unhappy intersection of computer technology and child pornography, we need not and therefore do not address them. The resolution of this appeal hinges on the narrow question of whether the government adhered to the terms of the plea agreement between it and the defendant during sentencing proceedings. Because we conclude that the government breached the plea agreement, we vacate the sentence and remand for resentencing by another district judge.

The dissent in Griffin by Judge Wesley starts this way:

The majority concludes that this case should be remanded to a new district court judge for specific performance of the government’s promise not to object to defendant’s request for an acceptance of responsibility adjustment. It does so in the name of preserving the integrity of the plea bargaining process and public confidence in the federal criminal justice system. I agree with my colleagues that courts must be vigilant in holding the government to its promises. I submit, however, that the majority’s analysis overlooks a crucial fact in this case – defendant’s own prior breach of the agreement.  In my view, remand will seriously undercut the very policy concerns the majority seeks to protect. I therefore respectfully dissent and vote to affirm the judgment.

The intersection of crim law and dispute resolution

Michael O'Hear and Andrea Schneider have posted on SSRN this short and interesting piece entitled "Dispute Resolution in Criminal Law." Here is the abstract:

Although the study of plea bargaining would seem, by its nature, to invite interdisciplinary collaboration between criminal law and dispute resolution scholars, there has been remarkably little cross-fertilization between the fields.  In this Essay, we discuss the suitability of conceptualizing plea bargaining as a form of dispute resolution and describe some of the useful things that criminal law scholars might learn from dispute resolution scholars, and vice versa. The Essay, which introduces a symposium issue of the Marquette Law Review devoted to plea bargaining, also briefly previews the other papers included in the symposium.

UPDATE:  A helpful reader sent me a note detailing that others are working on the crim/ADR connection:

You may be interested to know that the winning entry in this year's ABA Section of Dispute Resolution essay contest for law students also focused on applying ADR to criminal cases; specifically, the article encourages adaptation of victim-offender mediation to the cases of those who have been exonerated after wrongful convictions.  The article addresses, among other things, the anger that victims continue to feel toward those convicted of the crimes against them, even when the evidence of innocence is substantial, and suggests mediation as a tool to heal the anger for both victims and the wrongfully convicted.

Here is the link to the Section of Dispute Resolution website, which has a link to the winning entry.

Interesting allocution decision from the Ninth Circuit

The Ninth Circuit today in US v. Biagon, No. 06-10479 (9th Cir. Dec. 17, 2007) (available here), has an interesting little opinion on allocution rights.  Here is how it begins:

In this appeal, we consider whether the district court violated the defendant’s right of allocution when it denied a motion to close the courtroom for sentencing.  We conclude that the defendant’s rights were not violated, and affirm the judgment of the district court.

Judge Kleinfeld concurs in a separate opinion to express concerns about what the majority says and ends his opinion in this way:

We ought not use this case as a vehicle to develop a new rule unnecessary to a decision that may sacrifice other important public interests to the interest in press access.

Fascinating plea reversal from the Fourth Circuit ... and Seventh, too

The Fourth Circuit has a notable ruling in a case with remarkable facts today in US v. Mastrapa, No. 06-4512 (4th Cir. Dec. 12, 2007) (available here).  Here is how it starts:

After Jose Alejandro Mastrapa agreed with two other men to transport several bags of groceries to a hotel room in Shenandoah County, Virginia, undercover agents in the hotel found five pounds of methamphetamine among the groceries and arrested Mastrapa along with the two others.  Mastrapa claimed that he had agreed to give the two men a ride and help carry their grocery bags but that he did not know them or what they were doing. Nonetheless, claiming that he hoped to minimize his sentence, Mastrapa pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1).  At his Rule 11 colloquy, however, Mastrapa refused, despite questioning by the district court, to admit to the factual basis necessary to support the charges against him, and the record included no evidence of Mastrapa’s mens rea.

The district court nonetheless proceeded to accept Mastrapa’s guilty plea and sentenced him to 120 months’ imprisonment.  Because we conclude that Mastrapa did not admit the necessary mens rea before entering his plea and the record contained no factual basis to support that element of the offense, we vacate the judgment entered on May 8, 2006, and remand for a new Rule 11 proceeding.

Among other notable features of this case, Mastrapa does not speak any English and his original attorney filed an Anders brief with the Fourth Circuit.  The Court thereafter appointed the University of Virginia School of Law Appellate Litigation Clinic to file a brief on Mastrapa's behalf, and now he gets a redo.

UPDATE:  As a commentor noted, the Seventh Circuit has a notable split ruling in US v. Sura, No. 05-1478 (7th Cir. Dec. 12, 2007) (available here) vacating a plea, though the case has more to do with an appeal waiver than a substantive misunderstanding of a plea.

Assessing and reflecting on the trial penalty

Tom Kirkendall at Houston's Clear Thinkers has this great new post entitled "Hedging the trial penalty."  Here is a taste:

Although some have questioned his business ethics, no one has ever questioned that legendary Houston oilman Oscar Wyatt is good at hedging risk.  After Wyatt was sentenced yesterday to a year in prison as a result of his plea deal, my sense is that Wyatt hedged the trial penalty risk (i.e., a life sentence) in an reasonably effective manner.

Meanwhile, in another plea deal, a tenured economics professor at the University of Pennsylvania faces a likely prison sentence of 4½ to seven years for bludgeoning his wife to death. The professor says he "just lost it."  What must Jamie Olis think about that as he finishes serving what will almost certainly be a longer sentence than the professor will serve?

And what about Chalana McFarland, a first-time offender who was sentenced to 30 years in prison in connection with a mortgage fraud scheme....

Is the draconian trial penalty in the American criminal justice system really generating the type of results that a truly civil society wants?

I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty: consider, for example, the reality that Genarlow Wilson and Weldon Angelos and border agents Ignacio Ramos and Jose Compean were all offered pleas deal that would have resulted in prison sentences years or even decades shorter than what they received after trials (in which, by the way, there were acquittals on some counts).

More concretely, I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley).  My anecdotal impression is that the trial penalty in some large corporate cases is now decades long.  If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.

Split Sixth Circuit finds problems with ex parte communications impacting sentence

Providing an interesting primer on the uncertain legal rules governing the sentencing process, a split panel today in US v. Christman, No. 06-3266 (6th Cir. Nov. 20, 2007) (available here), vacates a sentence based on a violation of Rule 32.  Here is how the opinion starts:

Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report.

For the reasons set forth below, we hold that defendant’s sentence was imposed in violation of Federal Rule of Criminal Procedure 32, which requires that at sentencing, the court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence,” and further states that the court “must – for any disputed portion of the presentence report or other controverted matter – rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing. . . .” FED. R. CRIM. P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the district court’s admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers’ subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i).

Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial.  We therefore vacate defendant’s sentence and remand for resentencing.

An academic amicus Note for the Sixth Circuit on acquitted conduct

As noted in prior posts here and here and here, the Sixth Circuit is currently considering en banc review of the continuing use of acquitted conduct as a sentencing enhancement after Booker in the wake of a panel's notable per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  Though some commentators seem to think only the Supreme Court should be giving acquitted conduct issues second thought, a recent sudent note available here from SSRN lays out a thoughtful case that Watts is not the end of the story for this issue.  The Note by James Bilsborrow is entitled "Sentencing Acquitted Conduct to the Post-Booker Dustbin," and here is the abstract:

Robert Mercado was an alleged member of the Mexican mafia operating in Los Angeles.  He was charged, tried by a jury, and subsequently convicted on several counts of drug conspiracy.  But Mercado was acquitted of the most serious charges: participation in multiple murders, violent crimes in the aid of racketeering, and assault with a deadly weapon.  When the district court judge calculated Mercado's sentence under the Federal Guidelines, however, he obliged the prosecution request to consider Mercado's liability in the offenses for which the jury returned acquittals. As a result — and in spite of the jury's verdict — Mercado's Guidelines sentence increased by seventeen years.  The Ninth Circuit later affirmed this sentence increase.

Although judicial consideration of acquitted conduct — conduct for which an offender has been charged and acquitted by a jury — may strike non-lawyers as confusing, the practice is not only quite common, but was specifically sanctioned by the Supreme Court in United States v. Watts in 1997.  Ten years later, however, the Court's sentencing jurisprudence is radically changed; beginning with Apprendi v. New Jersey in 2000, and continuing through its recent invalidation of the California state guidelines system in Cunningham v. California, the Court has steadily invalidated modern guidelines sentencing practices as violative of the Sixth Amendment right to a jury trial. In short, the Court has held that guidelines regimes often unconstitutionally transfer a disproportionate amount of fact-finding power from the jury to the judge.  This Note argues that judicial consideration of acquitted conduct is one such aspect of guideline sentencing that the Court's recent jurisprudence renders unconstitutional.  Consequently, not only is Watts no longer controlling, but so also is the commonplace practice that allows a judge to replace a jury determination of guilt with his own.

Opposition to considering acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would "strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).

As detailed in this post, last month an en banc petition was filed in White and I am eagerly hoping the White panel will convince the majority of the Sixth Circuit to take up the acquitted conduct issue.  Last week, the government filed its brief opposing en banc review in White.  I received a copy of that opposition, and it can be downloaded here:

Download govt_en_banc_opp_in_white.pdf (I think the pdf was scanned upside-down, but the brief prints out fine for reading).

Not suprisingly, the government asserts that the defendants claims are foreclosed by the Supreme Court's Watts decision a decade ago.  But, as I have suggested in a number of prior posts, I do not think Watts ends this debate in the light of Blakely and Booker and Rita.

• Rooting for the Sixth Circuit to take acquitted conduct en banc in White
• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing

UPDATE:  Because some commentors seem to think Watts ends this debate, it is valuable to remember that Booker clearly explains that Sixth Amendment issues were not raised on addressed in Watts.  Moreover, the fact that Watts indicates that it is not per se unconstitutional to enhance sentences based on acquitted conduct in some cases does not logically entail that it is always constitutional to enhance sentences based on acquitted conduct in all cases.

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

Virginia Supreme Court rejects reliance on penile plethysmograph in presentence report

Regular readers know from prior posts here and here, the use of penile plethysmography (PPG) has generated a number of notable legal disputes.  And, thanks to this post at AL&P, I see that the Virginia Supreme Court last week issued this interesting ruling in Billips v. Virginia concerning "the admissibility of opinion evidence based upon plethysmograph testing at a sentencing proceeding."  (We all had to know this issue would come up in Virginia given the state's legendary slogan.)

The two opinions in Billips have various interesting aspects, and this section of the concurring opinion highlights that Billips majority perhaps can be read to support an argument for defendant's receiving full trial protections at sentencings:

The majority’s holding is particularly troublesome to me because, in this case, we are concerned only with the admissibility of evidence contained in a pre-sentence report prepared in accordance with the provisions of Code §§ 19.2-299 and –300.  Such a pre-sentence report is considered only by a trial court in its sentencing decision.  The majority applies the evidentiary rule set forth in Spencer even though there is a relaxed standard governing admissibility of evidence contained in a presentence report.

Some related prior posts:

• Sixth Circuit panel splits over penile penology procedures
• Ninth Circuit as phallus protector