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January 24, 2005

Judge Panner works through Booker's retroactivity

In an opinion available for download below, US v. Siegelbaum, CR No. 02-179-01-PA (D. Or. Jan. 24, 2005), Senior US District Judge Owen Panner, previously famed for having found the federal guidelines structurally invalid due to the Feeney Amendment (details here), works thoughtfully through Booker's potential retroactivity.  According to the summary of the decision I received from a reader, Judge Panner concluded that:

1. The district court may hear a first-time § 2255 motion now, without waiting for the Supreme Court to decide whether Blakely/Booker are retroactive. [Whether a successive § 2255 motion may be heard now is a different question, governed by different statutory language].

2. The remedy announced in Blakely/Booker (advisory guidelines) must not be confused with the constitutional violation (in specified circumstances, sentence may be enhanced only if essential facts are admitted by defendant or found by jury applying reasonable doubt standard). The latter is the "rule" for retroactivity purposes.

3. The rule announced in Blakely/Booker is a new procedural rule.

4. Existing precedent does not definitively answer whether this new rule should be applied retroactively. No inference can be drawn from the failure to discuss this issue in Booker, as the cases before the Court involved direct appeals. Shriro held that a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, but did not decide whether application of a preponderance standard, instead of a reasonable doubt standard, is an error that requires retroactive relief.  Three pre-Teague cases suggest it may be, because the lesser standard of proof can significantly affect factfinding accuracy and society's confidence in the result.

5. Even if Blakely/Booker were entitled to retroactive application, Siegelbaum is not entitled to relief. The principles animating the retroactivity analysis would require that relief be limited to persons presently serving a sentence that was enhanced on the basis of contested facts not found beyond a reasonable doubt or admitted as part of the plea bargain. Only if a defendant actually disputed the facts that resulted in the sentence enhancement, and the court decided the matter against him, can the defendant show that he may have been prejudiced by application of the wrong standard of proof. Even then, a defendant would not necessarily be entitled to a reduced sentence. Arguably, he is entitled only to have the sentencing facts adjudicated under the proper standard of proof. Such questions must await another day, as Siegelbaum's petition can be resolved on other grounds.

6. Siegelbaum's guidelines range was enhanced 15 levels above the base offense level of conviction. However, he never contested the sentence enhancements, or the facts on which those enhancements were premised. He even stipulated to the sentence that was imposed. In return, the government agreed to dismiss twelve other counts against him, and to forego bringing additional charges. Siegelbaum has suffered no injustice. He received the sentence for which he bargained. Siegelbaum is not entitled to relief.

Download siegelbaum_opinion_denying_2255_motion.pdf

January 24, 2005 at 08:06 PM | Permalink


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I appreciate the effort to stake out the first published position on possible retroactivity and will now be citing Siegelbaum for that favorable point. I can also appreciate the "contested-facts" distinction Judge Panner creates, as it seems necessary to support his BRD-based retroactivity point. I have several defendants who can favorably fit within that category as well.

But I think the opinion's reasoning on why the petition should be dismissed without further proceedings is ultimately unsatisfying and unpersuasive. For example, there's no acknowledgment that the defendant might have originally made a strategic decision not to contest the loss amount because he knew any factual disputes would be resolved by a mere preponderance of the evidence and by a judge or of the possibility that he might have decided differently if he believed factual disputes would be resolved by a jury or beyond a reasonable doubt.

My guess (and probably Judge Panner's) is that the government's evidence on loss was probably strong, likely established by a paper trail, but we don't know if that's a valid assumption because the underlying facts aren't discussed here. If they had been, Judge Panner could have found that granting an evidentiary hearing on that point now would be a pointless exercise. If he had gone through this analysis and made that conclusion, it might have provided a valid basis for dismissing the 2255 claim without further proceedings. See Rules Governing 2255 Proceedings, Rule 8.

While he never says so, Judge Panner's observations about the nature of the offense suggest that he believes Siegelbaum's sentence was "reasonable" and that he would reimpose it under an advisory-guidelines scheme if required to resentence. Nevertheless, it would have been unfair for him to make that type of finding without first giving the defendant the opportunity to present and argue 3553 factors prohibited under the mandatory-guidelines scheme. If he had bypassed the procedural arguments and simply given Siegelbaum that limited opportunity he could have "reconsidered" the original sentence and denied the 2255 petition without a full-blown resentencing.

In my opinion, that would have been a much more satisfying and defensible outcome.

Posted by: Alex E. | Jan 24, 2005 9:24:47 PM

The problem is the short shift that the order gives to the question of whether the rule of Blakely is, in fact, new. If it's not new - if Apprendi announced the rule - then Schriro (involving pre-Apprendi cases) and Teague don't come into play. And read Blakely again; the majority concludes that it's not new. They say that the precedents (Apprendi and Ring) were clear at the time of Blakely's sentencing. They use similar language at the beginning of Booker.

The order begins and ends by saying, well, we here in the 9th cir (and everywhere else) didn't think that this was what Apprendi meant, so any rule of Blakely must be new. But the only votes that count are the Apprendi/Ring/Blakely Five. And they knew that this was what Apprendi meant, and in Blakely said that everyone else should have know so too.

Posted by: James | Jan 24, 2005 9:32:36 PM

The concern I have with Alex's comments is it starts getting into "coulda-woulda" territory. Every defendant will insist, "I never would have pled guilty, or stipulated to that sentence, if I thought the government would have to prove the sentencing facts beyond a reasonable doubt." Do we have a hearing on every one? At that point, you may as well just say everyone gets resentenced with advisory guidelines. And perhaps that would be the right thing to do -- but it will never happen.

Some judges would welcome an opportunity to correct past miscarriages, but many overworked judges will view it as an imposition. As it is, thousands of sentencings presently on direct appeal may be remanded for reconsideration. The last thing many judges (and law clerks) want is to compound their workload by re-opening untold thousands of past sentencings. It isn't even clear what rules we would use. For instance, do we prepare a new PSR, and the judge can consider post-sentencing conduct in prison, and everything else, in deciding what sentence to impose? Sounds great, except the presentence report writers are already overworked and under-funded. So are many defense attorneys. What about our defendant who didn't contest the facts, but now says he would never have agreed to the plea bargain -- does he get to withdraw his plea and go to trial? Does the evidence even exist anymore? And what about that other count (you know, the one carrying the mandatory minimum sentence) that the government dismissed in return for the guilty plea?

Judge Panner's opinion probably represents the best framework that defendants can realistically hope for. If defense attorneys push for the moon, and demand retroactive treatment for everyone, the Supreme Court will just say it isn't retroactive, end of story. Stevens & Scalia couldn't even command five votes for their remedy, let alone to make it retroactive. Nor do I see Rehnquist or O'Connor voting for retroactivity either.

Posted by: Inside View | Jan 25, 2005 12:23:48 AM

I like Judge Panner's analysis.

I believe that when one goes through the retroactivity framework, it's clear that Blakely (or at the very least, Apprendi) should be applied retroactively. I haven't seen the three cases he refers to, but I have seen Ivan v. NY which makes pretty clear that the BRD is a watershed rule.

On the issue of whether Blakely announced a new rule, I have seen the language in Blakely (and Schriro) which indicates that the majority believes Blakley was an application of Apprendi and the result was made clear by precedent. However, I'm not sure that's enough to satisfy Teague ie., despite this language, Blakely was not "dictated" by precedent. Nobody (save Kansas?) saw it coming?

Regardless, if I were a betting man, my money would be on the majority reaching for, and finding, a basis to distinguish these past cases and hold Blakely/Apprendi do not apply retroactively.

Posted by: Ron O'Neal | Jan 25, 2005 11:18:36 AM

Judge Panner states:
"Only if a defendant actually disputed the facts that resulted in the sentence enhancement, and the court decided the matter against him, can the defendant show that he may have been prejudiced by application of the wrong standard of proof."

Any thoughts an whether in a 2255 motion the petitioner can argue ineffective assistance of counsel for failing to object to the enhancements in a situation where the defendant did not agree to the enhancements in the plea agreement or on the record?

-- A criminal defense attorney (and OSU grad -- hi Prof. Berman! Love your Blog!)

Posted by: Candace Crouse | Jan 25, 2005 3:30:05 PM

The "beyond a reasonable doubt" argument is an unfortunate digression. The Stevens majority held that the USSG were unconstitutional but only if "mandatory." The Breyer majority created a remedy by making the USSG "advisory." There is nothing in the remedial decision that requires that the existence of an enhancing factor be determined by the court beyond a reasonable doubt! Indeed, after excising 3553(b)(1), it left 3553(b)(4) which retains the requirement that the sentencing court must consider, but now no longer need follow, the USSG! The USSG specifically uses a preponderance of the evidence standard (see the Commentary to 6A1.3 (PS). A sentencing court that disregards this then is misapplying the USSG and subject to reversal under 3742(f)(1). Moreover, by making the USSG advisory, Blakely and the Stevens majority opinion in Booker/Fanfan are n o longer applicable or germane. The statutory maximum is not that set in the USSG but that set by the statute itself. One also should note that SCOTUS has upheld the use of this standard [U.S. v. Watts, 519 US 148, 154 (1997)] As long as the USSG are advisory, the court in using the preponderance of the evidence in sentencing is doing no more than it has historically and has never been ruled as a violation of the Constitution [see discussion in Witte v. U.S., 515 US 389, 399-401 (1995)] Those cases and other precedent to the same effect have never been overruled and are not overruled by Booker/Fanfan. SCOTUS has on several occasions cautioned lower courts about assuming overruling by implication instead saying that lower courts must follow its precedent until SCOTUS itself overrules it!
On the retroactivity question, I suggest that those who believe that Booker/Fanfan may be applied retroactively because it is not a "new rule" should read Lambrix v. Singletary, 520 US 518, 528 (197) and Butler v. McKellar, 494 US 407, 407 (1990).

Posted by: Thomas J. Yerbich | Jan 26, 2005 6:14:18 PM

On 2255, is it common for a Judge to wait over two and half years to make a ruling on it?


Posted by: Jeff Wood | Jan 27, 2005 7:49:38 AM

Research done within the last week of decisions made by federal courts appear to read the Booker/Fanfan decision as only being retroactive to "cases on direct review." pg 769 of the opininion. In re Anderson from the 11th Circuit seems to have one of the better thought out argument (or at least the easiest to apply): the Supreme Court is the only one who can make a rule retroactive for collateral-review purposes, and when they do, the holding will be unambigous. Here in Booker, the Supreme Court says that "we must apply today's holdings ... to all cases on direct review." The opinion even cites Girffith v. Kentucky about retroactivity. I haven't seen a circuit case yet that applies Booker to cases on collateral review. So to me it seems clear that the Supreme Court intended it to be applied only to cases on direct appeal. But I wonder if it is all that simple. Should it be, or am I missing a big part of the retroactivity picture here?

Posted by: Jess | Feb 10, 2005 6:36:14 PM

My difficulty with retroactivity rests in the text of Booker.

Above Judge Panner says:

"3. The rule announced in Blakely/Booker is a new procedural rule."

But in the opinion the Court says:

"It is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance." Booker 543 US 220 at ___ [at 742]

To me "formalism" means procedural and "substance" means substance. Generally, substantive rules are retroactive and procedural rules are not. If that reading is right that would make Booker retroactive. In addition, it would then appear that the rule of Apprendi could also apply retroactively, as both rest on the same substantive issue of law--"other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Booker at ___; [at 746]

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