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January 17, 2005

More collected Booker (and Wilson) commentary

I am about to hit the road to travel to home to Ohio from North Carolina, and thus I will have to be off-line the rest of the day.  In this post before my trip to NC, I collected my first dozen substantive Booker posts (which now also have more than 200 substantial and insightful comments from readers).  Below are some (topically organized) highlights of the substantive posts since then:




January 17, 2005 at 11:00 AM | Permalink


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» Martha Stewart Weighs in On Booker Decision from TalkLeft: The Politics of Crime
Martha Stewart indeed is becoming a prisoner's rights advocate. Welcome, Martha. Following the Supreme Court's decision in Booker last week, Martha sent an e-mail to Wall St. Journal reporter Laurie Cohen. (subscription only.) The gist: Martha thinks t... [Read More]

Tracked on Jan 18, 2005 1:45:56 AM


Questions about Booker from a defense lawyer:

1) Booker renders the Guidelines advisory, but requires courts to consult the Guidelines in imposing sentence. How does this affect which version of the Guidelines to consult? The Sentencing Guidelines require courts to apply the Guidelines in effect on the date of sentencing unless an ex post facto issue is presented by not using the Guidelines in effect on the date the crime was completed. Now that the Guidelines are "advisory," and not mandatory, it would seem that no ex post facto issue is presented anymore by consulting the 2004 Guidelines. If courts follow Cassell's opinion and give the Guidelines substantial deference, does this mean that defendants, say whose fraud crimes were committed prior to when the 2004 Guidelines took effect, may receive harsher sentences than they otherwise would have under the mandatory Guidelines system?

2) When a defendant has pled guilty pursuant to a plea agreement which includes a provision not to request a downward departure or limiting the available grounds on which a departure may be sought, what happens to that agreement now? Can a defendant now request a lower sentence than otherwise required by the Guidelines although he wasn't able to before Booker?

Posted by: Eric C | Jan 17, 2005 1:55:28 PM

okay, I need some clarification on Breyers opinion. The department of justice after blakely told all prosecutors to include sentence enhancing factors into indictments, however Breyer says that this is giving the courts only the right to decide the sentencing based on what the prosecution “chose” to charge, Does the prosecution have the right to determine enhancing factors? Wouldn’t those have to be decided by a grand jury?
If the judge isn’t allowed to make judicial fact-finding, but the guidelines are advisory, I don’t see how this make judicial fact-finding constitutional, even if the sentence isn’t mandatory, then how does that make a sentence based on judicial fact-finding constitutional??

Posted by: Jessica T. | Jan 17, 2005 4:25:04 PM

Referring to Eric C's questions, another defense attorney frames these arguments (and awaits plenty of critiquing).

1) Advisory Guidelines seem, at first blush, to remove any ex post facto issues as originally contemplated by USSG Sec. 1B1.11(b). Even making the USSG advisory, though, does not obviate the obligation to apply those guidelines in full, as if applied mandatorily, as one of several sentencing considerations demanded by 18 USC 3553(a).

In this light, appropriately considering a USSG guidelines advisement means applying the USSG EXACTLY as if it was still mandatory (including USSG 1B1.11 and possibly an earlier Manual), and then considering that calculation amidst the other factors named (and implied) in 18:3553(a).

Alternatively, if the court won't go for the "strict USSG application" argument, then using the 2004 (or later) Manual gives rise to other, discretionary arguments that the advisory USSG as applied overstates the calculation contemplated pre-Booker.

If advisory USSG means Sec 1B1.11 and sections like it are merely voided (which I do not read J. Breyer to mean), then applying later Manuals that were once forbidden ex post facto begs counterargument that the USSG calculation grossly overstates the seriousness of that offense.

2) Since "downward departures" no longer exist as a matter of law, one can argue that material term of the plea agreement stands rescinded. That answer begs the question whether Booker voided just one clause in an otherwise materially unchanged bargain or (as either side might argue) whether Booker voided such fundamental parts of those agreements that the entire bargain must fail.

So, in Eric's second hypo, I immediately see three paths (though there will be as many alternatives as there are readers). One: argue valid Booker/18:3553 sentencing factors, even if those factors may have been considered "departures" pre-Booker, and make USA argue to invalidate the plea agreement or strike the sentencing memo. Two: file to withdraw guilty plea and agreement as not made knowingly and voluntarily in light of Booker. Three (recommended, depending on real-life relationships with other parties): telephone AUSA, announce intent to apply Booker and seek Judge's full circumstantial consideration, and see whether accommodation can be reached (say, an amended agreement) for the court's simple approval.

All of this presumes the defendant is willing to risk seating a jury, of course.

Posted by: Jay Hurst | Jan 17, 2005 7:18:24 PM

Eric and Jay,
For a brief discussion on ex post facto and why it does not apply, but due process does, see the discussion dated January 16, 2005, regarding what Congress and the Commission should do now. The Professor and I discuss that in a couple of messages. For what it is worth, my thoughts are that if you had a Blakely "issue" in the past-- enhancements that the indictment does not support-- and are concerned that the sentencing judge will sentence your client with the enhancement, (or worse, a sentence over the "suggested range"), then raise due process to try to get a "Blakely-ized" sentence (if your client committed the offense before Booker).

Posted by: doug | Jan 17, 2005 9:10:59 PM

I'm also not sure "downward adjustments" don't exist anymore. As I noted in an earlier post, a judge in the SDNY told me he intends to apply a traditional guidelines analysis, including downward departures, and then move to other 3553 factors that are not ordinarily relevant under the guidelines. His theory, which I grudgingly admit seems sound, is that an initially lower guidelines range--by virtue of recognized downward departures--makes an even lower overall sentence (by virtue of 3553 factors) more likely to be found reasonable (or "not unreasonable") on appeal.

Posted by: Alex E. | Jan 18, 2005 9:41:02 AM

Well met, Doug, and after reading Bouie and Rogers once it does seem due process is the sounder argument over ex post facto application. On the fly, though, I pitch this ex post facto bit in the alternative.

“Booker doesn't reflect judicial decision-making, but rather, very narrowly, it struck two constitutionally unsound statutory subsections. Sentencing statutes still remain and, as applied, those statutes today create a substantially different legislative punishment mandate than existed on January 11, 2005. The statutes now as applied leave [Defendant] subject to punishment that exceeds the sentencing range contemplated under the sentencing statutes, including Sentencing Guidelines, in [Year]. Because the remaining sentencing statutes themselves render additional punishment possible, the legislative acts triggering Calder categorizations and ex post facto analysis exist.”

Again, please remember this is draft thinking on the fly. Also, even if it withstands (appreciated) criticism, this argument doesn’t seem help anyone whose contemplated (or directly appealed/collaterally challenged) sentence is (was) life without parole.

Deferring to Alex, I did not mean to suggest adjustments and departures, both up and down, have entirely ceased to exist, but only that mandatory departure precedent no longer controls (except, it seems, as a part of the (common law?) baseline upon which “reasonableness” will be determined). In fact, due process and possible ex post facto arguments seem to turn on fundamental fairness, and how fairness requires each defendant’s advisory USSG application to reflect exactly the sentencing range Judge would have contemplated pre-Booker.

Thus, unless the appropriate USSG Manual is applied in full, including (now non-binding) departure commentary – no factor is forbidden anymore – the Court cannot complete its analysis under 18 USC 3553(a). My bad for not clarifying (and maybe stretching a little, too…). The SDNY bench with whom Alex spoke does make a lot of sense accepting a “strict USSG application” approach. It also shows how important it is to correctly apply USSG Sec. 1B1.11 (and the appropriate Guidelines Manual) in a post-Booker world, be it through due process or ex post facto.

Looking forward to critique.

Posted by: Jay | Jan 18, 2005 11:56:33 PM

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