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January 21, 2005

Always remember to show your work

This afternoon, a memorandum, signed by Ricardo H. Hinojosa, Chair of the US Sentencing Commission, and Sim Lake, Chair of Criminal Law Committee of the Judicial Conference, was sent to all District Judges and other key court personnel concerning "Documentation Required to be Sent to the Sentencing Commission." The two-page memo, which can be downloaded here, "reiterates and emphasizes the importance of continuing to submit sentencing documents to the Sentencing Commission in accordance with the requirements of 28 USC § 994(w)."  Here's the memo: Download ussc_documentation_request.pdf

The USSC memo sends a strong and critical message about documenting post-Booker sentencing decisions.  It stresses that it is "particularly important that judges continue to comply with the requirements of 28 U.S.C. § 3553(c) by providing a complete statement of reasons for imposing the sentence" and notes that "documentation will be useful to the Judiciary, the Commission, and the Congress as we strive to continue to carry out the goals" of sentencing reform.

In a related vein, the blog Ex Post is doing a stunning job live-blogging the work at the on-going Columbia Law School conference on state sentencing.  Already posted are wonderful accounts of Friday's two panels (here and here) and two lectures (here and here), and I also see two potent pre-conference about Booker (here and here).  And, the Blakely Blog now also has extended posts covering Friday's two panels (here and here).  All great reading.

Also, while we are in a documentation mode, let me spotlight just a few of my major Booker commentary posts of note in recent days:

January 21, 2005 at 11:20 PM | Permalink


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Great info. I hope this continues to make judges accountable for the facts that they find. I hope that the result of Blakely/Booker is that Judges use a higher standard to find fact on the enhancements than "whatever the prosecutor says". "Reasonableness" on appeal I hope woudld come to mean that appellate courts could review the record and find that there was less than a "reasonable doubt" that the "fact" that lead to an enhancement was not proven. This seems to me to be the best compromise - let judges find fact on the enhancements but they must be found beyond a reasonable doubt. After all the facts regarding the enhancements that are not put before a jury can be reviewed by the appellate court just as easily as before the circuit court. Why not let them review the record etc. and decide if they are reasonable or not?

Posted by: bbigler | Jan 21, 2005 11:50:13 PM

When I was arguing my Booker case before the Second Circuit last Wednesday, one aspect of a debate that seemed to have begun during an argument the day before was whether to vacate the original sentence and remand for "re-sentencing" or simply remand for "reconsideration" of the original sentence. There was no discussion during my argument about what standard might be used if the remand were only for "reconsideration."

I'm not sure I see a material difference but the panel seemed to perceive one. Perhaps the remand for reconsideration could be restricted to whether the original sentence was "reasonable," which might tie the district judge's hands more than vacating and remanding for a full re-sentencing. The panel members seemed to think that under the unusual circumstances of my case, where the original sentencing judge has since retired, vacating and remanding for a full re-sentencing might be more appropriate but my sense was that they would prefer "reconsideration" in the typical case.

I'm interested in anyone's thoughts as to whether this could be a crafty way of limiting the impact of Booker in "pipeline" cases, what arguments might be raised against remand for this limited purpose and what standard the Court should direct a district court to use if it did remand only for "reconsideration." As mine is a plain-error case, I'm interested in whether a limited remand might be more appropriate in that context than where the Blakely/Booker issue was preserved.

If the arguments merit it, I'd consider writing an additional supplementary letter to the Second Circuit raising and addressing this issue. I might not have much time before a decision is rendered, however, so I'd need to receive any suggestions by Sunday evening. I'd prefer to receive them through the comments section here, so others can evaluate them as well.


Alex Eisemann

P.S. I recognize this comment isn't fully relevant to the body of the main post, but it seemed to satisfy the minimal scutiny test.

Posted by: Alex E. | Jan 22, 2005 3:25:07 PM

Alex, I think you might write to stress all the factors now relevant to 3553(a) that, with the guidelines binding, were not permissible considerations before (e.g., ordinary family circumstances, lack of youthful guidance, etc.). The decision in Ranum provides a very nice review of these matters, all of which would support full resentencing, not just reconsideration.

Posted by: Doug B. | Jan 22, 2005 5:56:49 PM

You people kill me. If you were a judge, how do you base your decision as far as sentencing on abstract things such as family circumstances, lack of youthful guidance, deterence, rehabilitation etc... Just say a few magic words??? Those type of things while maybe warranting a lower or higher sentence cannot be quantified and therefore different judges will do different things with those, based on their backgrounds, party affiliation, location, education etc... DISPARITY is here now and will increase over time if things are left as they are. You all may want to be judged on those things but for some it will result in a lower sentence and for others a higher one. Go see one judge and get ten years and go to another and get probation, even in the same building. If you were a defendant and got ten years and hauled out in chains, while your codefendant walked away with probation, even though you did pretty much the same thing and had similar backgrounds how would you feel. Judges, even in the same circuit and even same district/building, see things very differently. It's unreal. I see it every day. There needs to be a standard/guidance that is fairly much binding, but with "some" discretion to let others, including the defendants. know why the judge did what he or she did. Furthermore, this advisory stuff, if left like it is now, will lose importance and turn into just another one of those abstract things previously mentioned.

Posted by: one who knows | Jan 22, 2005 8:21:51 PM

Oh, another thing. It works the same for case agents and US Attorneys, they have different charging methods and such based on their backgrounds, location, education, aggresiveness and such as well as different defense attorneys getting better or worse results based on many of the same things, including pay. Probation Officers try to apply the guidelines as written given the law and the available evidence. When the human factor is involved this it what happens. Congress as well when making laws. The guidelines need to be binding, giving some discretion to judges in extraordinary circumstances, and all AUSAs need to charge and go for the most serious crime/punishment that is proveable. The guidelines as they were drafted were the best attempt at getting uniformity, with some give in certain circumstances. Maybe you all thought the guidelines came out way to high, but if handled correctly from arrest to sentencing, by everyone involved, at least there could be some uniformaty.

Posted by: one who knows | Jan 22, 2005 8:47:43 PM

It works the same for Probation Officers. Usually you get someone brain dead who takes everything the AUSA and disgruntled witnesses say as fact. And then the PO puts the hammer down in his report full of lies, heresay and half-truths and say "that's my job". "It's my job" didn't work for the guards at Auschwitz, and it shouldn't allow the PO's to escape responsibility and culpability here. It's an important job but filled by souless minions and tools of the AUSA's. It just makes me wonder when you get hired there if they let you keep the little pice of brain they take out.

Posted by: yikes | Jan 22, 2005 10:20:56 PM


Both sides can argue the conclusions/findings in the psr. In fact it is disclosed to both parties 35 days after plea or finding of guilt (not to the Judge at that point) for the sole purpose of allowing the parties to lodge objections. At that time it gets worked out, or if it can't, the Judge has the ultimate decision after hearing arguments from both parties. I guess you are saying the P.O. is the one imposing sentence, not the Judge. Get a better defense attorney to dispute the psr if you think it is always the gospel.

Posted by: one who knows | Jan 23, 2005 12:13:20 AM


But why couldn't a district court consider all those previously-prohibited factors under a mere "reconsideration" remand? Is it clear to you that it would provide less ability to do that than a full re-sentencing? At this point, I'm not sure how I could explain to the Second Circuit why reconsideration is insufficient or how it would materially differ from a re-sentencing. What's your take on why they seemed to prefer the former over the latter?

I'd think the general discussion about why some form of remand is necessary to consider the factors you mention is already covered sufficiently in my first letter. Do you disagree?

Posted by: Alex E. | Jan 23, 2005 12:25:40 AM


Oh by the way, if you play you can pay. Don't hang with the big boys (FEDS) if you can't. If you don't do the crime in the first place all of this doesn't matter. If you do the crime remember that deterrence is one of the things to be considered along with the now advisory guidelines.

Posted by: one who knows | Jan 23, 2005 12:47:02 AM

Forgive me, but...

Don't hang with the big boys?

Federal law permiates our life. We all play with the big boys. To me, your "by the way" advice sounds cold and lacking a certain basic empathy inherant in most human beings. If you work for the system, it sounds like you're part of the problem and the very reason Booker was necessary.

If you don't do the crime in the first place all of this doesn't matter?

That's like saying you wouldn't have to worry about me sentencing you to life in prison if your boyfriend hadn't sold drugs. Get the draconian logic there? Ask someone to explain.

And deterrence resulting from overwhelming fear caused by (someone else's words) soulless PO's who consider themselves the actual factfinder is NOT the best we can do. We can do better. This country deserves better.

Posted by: grant p. | Jan 23, 2005 6:07:40 AM

I'm not going to waste my time venting on "one who knows" (I'll just consider the source) but I will say this--I don't care who you are, if you did not admit to something in a plea agreement or you have not been found guilty by a jury of that offense, you should not do time for it. I'm talking about relevant conduct. The sentence should be whatever the matrix says after taking into account prior convictions, of course, but nothing further.

Of course, snitches shouldn't get less time either. What is that teaching society? You can commit a crime as long as you have someone you can snitch on?

Punishment is not that much of a deterent. Most potential criminals do not look at the law and see how much time they might get when they make a decision to break the law, they just do it.

And if you prosecutors want someone to do time for the amount of drugs he sold, get him convicted of it or shut up.

Our prisons are overloaded with non-violent and white collar offenders who could be out working and paying taxes instead of being a burden on us taxpayers.

And the BOP is broke!

And for those who believed the press when Martha Stewart got sentenced--not everyone over 50 gets a bottom bunk. I know that for a fact! He's been in for a year and is still on the top, he was over 50 when he went in and has a bad knee. They don't care!

Posted by: Shelly | Jan 25, 2005 2:23:42 PM

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