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January 24, 2005

The Fourth Circuit speaks on Booker!

After a seemingly calm day, the circuit action has cranked up again.  Thanks to helpful readers, I now can link to US v. Hughes, No. 03-4172 (4th Cir. Jan. 24, 2005) (available here), in which the Fourth Circuit, per Judge (and former US Sentencing Commission Chair) William W. Wilkins, finds "plain error in sentencing" and chooses to "exercise our discretion to notice the error, vacate the sentence, and remand to the district court for resentencing consistent with the remedial scheme set forth in Justice Breyer's opinion for the Court in Booker."

The Hughes decision has a lot of important language and dicta on remedial issues (some tucked into footnotes).  I will highlight here some language that catches my eye, and perhaps readers can add more:

Booker wrought a major change in how federal sentencing is to be conducted. As the law now stands, sentencing courts are no longer bound by the ranges prescribed by the guidelines. As long as a sentence falls within the statutorily prescribed range, the sentence is now reviewable only for reasonableness. Under the record before us, to leave standing this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings.  We therefore exercise our discretion to correct this plain error.[FN 8]

[FN 8] In determining whether the exercise of our discretion is warranted, it is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The fact remains that a sentence has yet to be imposed under a regime in which the guidelines are treated as advisory. To leave standing this sentence simply because it may happen to fall within the range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings. Indeed, the determination of reasonableness depends not only on an evaluation of the actual sentence imposed but also the method employed in determining it.

Moreover, declining to notice the error on the basis that the sentence actually imposed is reasonable would be tantamount to performing the sentencing function ourselves. This is so because the district court was never called upon to impose a sentence in the exercise of its discretion. That the particular sentence imposed here might be reasonable is not to say that the district court, now vested with broader sentencing discretion, could not have imposed a different sentence that might also have been reasonable. We simply do not know how the district court would have sentenced Hughes had it been operating under the regime established by Booker.

January 24, 2005 at 04:31 PM | Permalink


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Thanks for the tip! Now cited in a Rule 28(j) letter submitted to the 2d Cir. in the appeal I argued last week.

Posted by: Alex E. | Jan 24, 2005 5:32:12 PM

More proof that Apprendi/Blakely errors are structural.

Posted by: Steve Sanders | Jan 24, 2005 6:28:06 PM

Does anyone have information on any of the cases where Judges issued 2 or more alternate sentences (usually the same) trying to anticipate the USSGs becoming either just advisory or stricken down?

Posted by: grant p. | Jan 24, 2005 6:40:41 PM

Doug: A fair reading of this opinion in my mind would mean, in the Fourth Circuit at least, all failures to apply Booker are plain error. Assuming the Fourth Circuit stays true to that (and frankly knowing the Fourth Circuit's well-deserved rep as not being friendly to criminal defendants, I doubt it will), we should expect lots of summary remands, and lots of busy district judges in Virginia, Maryland, etc.

Posted by: Cincinnatus | Jan 24, 2005 8:05:48 PM

Some interesting points that struck me on a first reading (and, like Alex, I have already cited it in a filing to the 3d Circuit this afternoon; thanks, Doug!): Judge Wilkins focuses sharply on the "error" as being that defined in the Stevens part of the majority opinion -- increasing the "statutory maximum" (top of mandatory guideline range) on the basis of facts not found BRD by the jury (or admitted in connection with the plea). The "error" lies NOT in being subjected to mandatory rather than "advisory" guidelines, or being sentenced in obedience to sec 3553(b), rather than 3553(a). Only a person with the former (Sixth Amendment) sort of error has a claim, as I read the opinion. I'm not sure I agree with that. However ... in this connection, Judge Wilkins and his panel define the "affecting substantial rights" (prejudice) prong of the plain error test as being met by having had one's sentence increased on the basis of such Apprendi-violative findings, NOT as being met by a showing, by whatever standard, that a different sentence might have ensued had the "correct" (Breyer-ized) procedure been followed at sentencing (although arguably this alternative approach is treated instead in footnote 7, which leaves open how the 4th Cir will treat cases where "alternate" sentences were articulated (you can't say "imposed") after Hammoud). Judge Wilkins's approach to the prejudice prong would seem to implement that mysterious sentence at the end of the Breyer majority opinion ("It is [i.e., that not all cases need be resentenced] also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless error doctrine."). If there is a Sixth Amendment violation (sentence based on improper judicial findings treated as having binding consequences) then you have an error affecting substantial rights, Justice Breyer's majority seemed to say, and Judge Wilkins's opinion implements that view. The Fourth Circuit goes on to find resentencing required (the final, supposedly discretionary prong of Rule 52(b)) because to leave standing a sentence imposed under a mistaken belief that the guidelines are mandatory rather than advisory, when the latter is the law, impugns the fairness, integrity and public reputation of the proceedings. What pending case *doesn't* meet that test? Unless, as was the case in Cotton (S.Ct. 2002) the result would have to be the same on remand beyond a reasonable doubt, the Fourth Circuit suggests that resentencing under the 3553(a) standards will be the norm.

I found disppointing, however, Judge Wilkins' description of the "new" sentencing system under section 3553(a). He describes the need to calculate the guideline range as the "first" step. Since it's listed *fourth* in 3553(a), this could be taken to mean "most important" step in the process. The opinion hardly refers to the other five or six factors, and how they are stated as -- and by rules of statutory construction *must* be understood to be -- entirely separate from the calculation of the guideline range. And most disappointing he doesn't even mention the controlling "shall impose" language of 3553(a), which is "the sentence which is sufficient but not greater than necessary" -- our friend the principle of parsimony. All told, the Hughes opinion is not nearly as blindly (and erroneously) focused on the guidelines to the exclusion of other factors as Judge Cassell's Wilson decision, but it isn't all it could be in elaborating the flexibility of guided discretion under the rubric of section 3553(a), not by a long shot.

Posted by: Peter G | Jan 24, 2005 10:37:52 PM

Peter, thans for all the insightful commentary, all of which seems right on to me. I would say that, considering the hard line the 4th circuit takes on so many criminal law matters, getting such a strong statement on the fourth pain error "prong" seemed like a big deal to me.

Posted by: Doug B. | Jan 25, 2005 5:57:34 AM

I concur in Peter's reading -- and I also think that the class of cases thereby excluded is larger than he might assume. Consider, for example, a RICO conspiracy, where a jury special verdict exists identifying many predicate acts. There the 6th Amendment error is negligible or non-existent and the argument for prejudice comes only from the remedy portion -- i.e. that your sentence was imposed in a mandatory way rather than in an advisory way. I find it hard to reconcile Judge Wilkins treatement of the prejudice prong (which seems to go only to 6th Amendment violations) with his treatment of the fundamental fairness prong (which encompases wrongful process). I had always thought the latter category to be more narrow -- but Wilkins opinion suggests the opposite.

Posted by: Paul R | Jan 25, 2005 12:07:03 PM

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