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January 18, 2005

Ex post facto, due process and cases in the pipeline

In this post and in my testimony in November to the US Sentencing Commission, I spotlighted ex post facto issues as a reason for Congress and the USSC to react cautiously to Booker.  Because it seems unlikely that any "Booker fix" can be applied to cases currently in the pipeline, I continue to fear that any short-term legislative changes in coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices."

And yet, even before we see any legislative response to Booker, we should all be fully cognizant of the legal doctrines which may limit the immediate application of the "judicial fix" to Blakely that Justice Breyer has engineered through the Booker decision.  As discussed by Peter Goldberger at White Collar Crim Prof Blog here and as noted by commentors here, there are strong due process arguments that, in Peter's words, "a post-Booker sentence for a crime committed prior to Jan. 12, 2005, cannot be higher than the top of the applicable guideline range ... [and thus, for] some time to come, post-Booker discretion must, as a matter of constitutional law, be a one-way ratchet favoring lower sentences."

Though I have not (yet) fully thought through the issue, I think Peter may be right that due process doctrines prevent judges from using their new post-Booker discretion to impose sentences higher than the guidelines in cases currently "in the pipeline."  But I imagine there may be some, especially prosecutors, who do not agree with this due process/ex post analysis.  I hope perhaps the comments to this post might be a forum for debating this very important issue concerning how the tens of thousands of cases in the federal sentencing pipeline can now be sentenced.

January 18, 2005 at 10:24 AM | Permalink


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This looks like a weaker argument than the one that failed in Rogers v. Tennessee (retroactive abolition of "year and a day" rule). Note the overlap between the Booker remedy majority and the Rogers majority (Rehnquist, O'Connor, Kennedy, Ginsburg).

Posted by: John F. Carr | Jan 18, 2005 11:01:23 AM

Well, that depends. If one takes Blackstone's formalist view, as Scalia would doubtless do, then the Guidelines were always unconstitutional and the tops of the ranges never really bound judges. This strikes me as too formalistic, especially given the remedial creativity that Breyer engaged in (that could hardly be said to have existed all along), and it undercuts fair warning to defendants in practice, but given existing doctrine there's at least an argument that the Ex Post Facto clause shouldn't limit any sentencing below the statutory maximum, as long as it complies with Booker's reasonableness test.

Posted by: Stephanos Bibas | Jan 18, 2005 11:04:26 AM

I see that this is a better place to post my question for help in a Second Circuit appeal squarely raising Booker, which I'm arguing tomorrow morning, so any advice would be appreciated. Here is a link for an easy jump: http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/in_praise_of_em.html#comments

Posted by: Alex E. | Jan 18, 2005 11:32:04 AM

Does anyone have any thoughts on cases where there was a conviction, in which no enhancements were proven or admitted, prior to Jan 12 that have not been sentenced? In other words using a fraud case for example where there was no finding by a jury (or admissions by the defendant) can a judge now in essence find enhancements with his new found discretion or should he be limited to what the jury found since there was no remedy (Breyer) in place at the time the case was tried? If the judge were to use his discretion would there be an ex post facto issue?

Posted by: Student | Jan 18, 2005 11:37:16 AM

It appears to me that you can't block consideration of that information under any circumstances.

If the jury was asked to find, beyond a reasonable doubt, certain enhancements but "acquitted" your client of them, then I'd think you'd have some ammunition to try to persuade the judge not to find them by the applicable lower standard of proof.

If the indictment didn't allege any enhancements and the jury just convicted of the statutory elements, however, then I think this will be plain-vanilla post-Booker "reasonableness" in which the judge can consider anything. I haven't thought through any possibly-exotic reasoning, but my strong judgment is that since the trial was conducted as trials have always been and now will be continue to be in the future, you don't have any arguments to block use of the approach the remedial majority has mandated.

Posted by: Alex E. | Jan 18, 2005 12:26:15 PM

I am an Assistant Federal Public Defender in Oregon. Booker presents some problems in the application of the safety valve (18 USC 3553(f)) which limits the applicability of mandatory minimums in drug cases for people in Criminal History Category I. The relevant words of the statute read:

Notwithstanding any other provision of law, in the case of an offender under [21 USC], the court shall impose a sentence pursuant to the guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing ... that --

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines ... .

There are two issues here, first the requirement that the court "shall" impose a sentence under the guidelines if the various criteria apply, and second, that one of the criteria is that the defendant be a Criminal History Category I. Presumably the first issue could be remedied by striking the words "pursuant to the guidelines" etc. under the same remedial theory that Breyer used to strike down 3353(b) and 3742 (e). But the second issue, requiring that the defendant have no more than one criminal history point, is not so easily remedied simply by striking out language. Hopefully the courts and government won't be using this to deny the safety valve, or gain bargaining power because of the uncertainty, to those who would otherwise qualify.

Posted by: Bryan Lessley | Jan 18, 2005 2:36:57 PM

I am a current 3L law student and I was wondering if the Booker Decision is retroactive to case prior to the decision. If one's sentence was enhanced by a judge without presenting facts to the jury, would Booker's deciions be retroactive for this defendant if the case took place prior to Booker? Thanks.

Posted by: Natalie | Jan 19, 2005 9:19:52 AM

I wanted to post a comment concerning a case of mine. My client has been charged with eight counts of health care fraud. The total amount of fraud alleged is over $750,000.00. Post-Blakely, I had my client plead to just $4,100 of fraud under Count One. The court resisted at first, but accepted the plea based upon my plea memorandum that showed that all the elements of the crime were met and the court didn't have discretion. Yesterday, my client was due to be sentenced. The Court began to proceed with sentencing under the discretionary scheme in Booker. I objected and requested a jury for the enhancement. I argued violations of due process for proceeding under the discretionary regime. I also argued that my client's sentence could only be 6 months without a sentencing jury. The Court suspended the sentencing hearing and has requested additional briefing. I expect the due process argument to carry the day.

Posted by: Peter Smythe | Jan 20, 2005 9:20:37 AM

My federal defender's office has posted a due process argument that concludes (1) under Booker, a court can go below the guidelines for pre-Booker offenses by considering ANY factor it so chooses to produce a "reasonable" sentence, but (2) it cannot go above guidelines range for pre-Booker offenses under Bouie, Marks, and Rogers. The site is http://www.fpd-fln.org/, and the link on that page is Booker: Fair Notice (22kb), updated (1/21/2005)

Posted by: Chet Kaufman | Jan 28, 2005 11:26:06 AM

I have spent the past two days (16 hours)(wowee) in the law library endeavoring to find a case (thus far, negative results) which would provide authority that: 1) in the event of a judicial change to a law; 2) would precedent, (stare decis) which was previously favorable to a defendant; 3) but was now no longer favorable because of a judicial change in the law (my research quickly revealed that judicial changes of law do not trigger Ex Post Facto issues), then, if the change has a negative impact on a defendant, is the change retroactive, thus undermining precedent, or does due process doctrines, or any other factor protect the defendant from the change?

Your reply would be greatly appreciated.

Posted by: Joe Gieniec | Jun 8, 2005 2:46:04 PM

a defendant-- Is there any cases where a defendany has pleaded quilty - in my case one count of counterfeiting- and the Court has dismissed the plea and the case after all evidence of the case and testimony was presented at a sentencing hearing?

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