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January 15, 2005

Understanding and appreciating Judge Cassell's Wilson opinion

I am not surprised that TalkLeft and many commentors are disappointed by Judge Cassell's Wilson ruling; the decision confirms that at least one judge will, as Justice Breyer surely hoped, seek to create a post-Booker federal sentencing world that looks a lot like the pre-Blakely guidelines world.

But everyone should, as I have urged before, take a deep breath before coming to any big judgments about Wilson or Booker or anything else we see and read about the future of federal sentencing in the days ahead.  Moreover, in this post (and perhaps future ones), I will try to give some reasons why the Wilson decision, as I suggested here, merits far more praise than criticism.

1.  Consider the crime: Judge Cassell gave "heavy weight to the Guidelines" in a case involving a armed bank robbery committed by a defendant with an extensive criminal history. Wilson slip op. at 28-29.  Few have criticized the length of federal guideline sentences in these sorts of cases (as opposed to non-violent crimes by first offenders), and the sentence of 15+ years for defendant Wilson (188 months) actually seems quite moderate for a "five-time" felon who committed a serious crime with a sawed-off shotgun that terrorized victims.  Id. at 30.

2.  Consider the context: The defendant in Wilson had apparently admitted all the guidelines facts and signed a Blakely waiver.  Id. at 31-32.  Consequently, if the Stevens/Scalia/Thomas proposed remedy in Booker had carried the day, it seems Judge Cassell would have been required to impose a sentence of no less than 188 months and would have had (unreviewable) discretion to impose a sentence up to 235 months.  But, because Breyer's remedy carried the day, Judge Cassell clearly had discretion to impose a sentence less than 188 months and, arguably because of the parsimony mandate (discussed here), did not have discretion to go above 188 months.  See id. at 6 & 21-26.

3.  Consider the decision: Judge Cassell's ruling is direct, clear, cogent and provides needed and extremely helpful (and immediate!) guidance for lawyers and defendants facing sentencings in his court.  He also provides an expressly purpose-driven account and defense of the federal guidelines — and along the way invigorates the parsimony mandate, see id. at 21-23 and my parsimony post here — which is more thoughtful and transparent than any federal sentencing decision I have ever seen. 

Though I disagree with a number of Judge Cassell's substantive conclusions in Wilson, his work is (super-fast) judging at its finest — unlike, I have to say, some of the judicial work of the DC Nine earlier in the week.  Moreover, in addition to expressly refusing to enforce the defendant's Blakely waiver, id. at 32, Judge Cassell gave the parties 10 days to file any and all objections to his ruling so he could reconsider his conclusions in light of further input from the parties.

4.  Consider the decision-maker:  Wilson is the view of the post-Booker world from just one (very smart) district judge.  Let's see what some other very smart district judges —particularly those judges working toward a place in the Sentencing Judges Hall of Fame such as Judges Bataillon and Gertner and Goodwin and Holmes and Lynch and Molloy and Weinstein and Young and so many others — have to say on these matters.  (And, of course, we also have to hear from the entire cadre of circuit judges and probably the DC Nine, too, before we can really assess what Booker has done for federal sentencing.)

January 15, 2005 at 11:55 AM | Permalink


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» http://www.crimblawg.com/2005/01/bookernbsp_much.html from Criminal Appeal
Booker. Much has been said already about Booker. I have a couple specific reading recommendations: a post on the White Collar Crime Prof Blog including a Booker summary by Peter Goldberger, today's Booker Aftermath post at TalkLeft from T. Christopher [Read More]

Tracked on Jan 16, 2005 12:29:38 AM


My fiance is a federal prisoner incarcerated for heresay on a drug case since 1998. I have been following your blog for quite a few months now and you have one of the most up to date, accurate sites available. I am wondering what you think the Booker/Fanfan Decision will do for retroactive cases if anything at all? He has an appeal case pending in the Supreme Court already but at this point, now I am hoping that the Parole Bill gets put through as a last resort even though this decision finally came out in our favor. Do you think the decision will apply to only current cases or is there a chance a review of past sentences will get to be reheard?

Posted by: Tara Bogle | Jan 15, 2005 2:01:16 PM

Professor Berman, I think the problem people have with Judge Cassell's opinion is not the result, but the statement that he "will only deviate from [the] Guidelines in unusual cases for clearly identified and persuasive reasons." This sounds very much like the departure standard. If appellate courts follow this reasoning and hold that deviating from the guidelines is only "reasonable" "in unusual cases for clearly identified and persuasive reasons," then the Guideline will be de facto mandatory. You write that "Judge Cassell clearly had discretion to impose a sentence less than 188 months," but if his reasoning is adopted by appellate courts, that will no longer be the case.

Posted by: AF-law student | Jan 15, 2005 3:44:02 PM

AF, make exactly the right point, though it must be tempered by the reality that many other judges will likely, in exercising their discretion, define a different personal deviation standard. In addition, Jusge Cassell may find, especially in drug cases, that a lot of cases might involve persuasive reasons for departure.

Posted by: Doug B. | Jan 15, 2005 4:04:43 PM

As I have seen on previous posts, it makes a lot sense to take a deep breath, enjoy the positive aspects of these decisions and get back to work.
It will take time to see true and lasting consequences of Booker etc.
At least for now, we understand what the maximum and minimum sentences will be upon finding of guilt.
I hope the next step will be an attack against use of uncorroborated hearsay and unproven conduct being used to increase sentences under relevant conduct. This is a major problem facing defendants, especially those with codefendants and unindicted co-conspirators,in attempting to estimate possible sentence. I know there are many defendant's who would never voluntarily pled guilty had they known what Relevant Conduct would be used against them at sentencing.

Posted by: John Floyd | Jan 15, 2005 4:26:39 PM

John Floyd:

What do youe mean they wouldn't have pled guilty knowing relevant conduct would be used against them. They must have had poor lawyers. Any lawyer worth his or her salt would have told the defendant about relevant conduct and its applicability in their case. Furthermore, the maximum and minium sentence has always set out by Code. How is that any different? The judges always advised them of that before taking their plea.

Posted by: steve | Jan 15, 2005 5:34:45 PM


As I am sure you appreciate, even after fully explaining the full nature and extent of relevant conduct, there are many cases where co-defendants, law enforcement etc over exaggerate the involvement of defendants to get best possible result, at least from their perspectives; Co-defendants looking for a juicy 5k and law enforcement for the longest sentence possible, whether in good faith or not. As far as minimums and maximums, they are now what they should have been, minimums and maximums, unless the government can prove enhancement factors beyond a reasonable doubt. Hopefully, this will result in less BS hype from the government and their stooges.

Posted by: johnfloyd | Jan 15, 2005 7:22:28 PM

I'm sorry, as much as I respect Judge Cassell's brilliance, it simply doesn't justify this hasty and myopic opinion, which suffers from the lack of input he might have received had he respected the adversary process. It seems he rushed it out in the belief that it was his solemn responsibility to guide a nation of less capable lawyers, judges and scholars. See Opinion at 37 ("The court has hastened to produce an opinion on all of these subjects because they will recur in a large number of cases here and perhaps in other courts as well."). If he hadn't succumbed to the desire to reclaim the respected position he had occupied after Blakely, he would have realized that some of the basic premises upon which he relied in deciding how heavily to weight the guidelines were simply incorrect.

One can't fault his general premise that Congress has clearly indicated that its primary concern is deterrence, incapacitation and promotion of respect for the law. That doesn't logically lead to his conclusion that it and a centralized Sentencing Commission are much better equipped than district judges to decide what constitutes "just punishment."

There's certainly a superficial appeal to his observation that "the court is poorly suited to consider elasticities and other factors that would go into a sensible deterrence calculation. On the other hand, the Sentencing Commission with its ability to collect sentencing data, monitor crimes rates, and conduct statistical analyses, is perfectly situated to evaluate deterrence arguments." Opinion at 17. But the issue isn't that simple. Of course, hearings and studies are the best method by which to assess whether certain types of sentences will produce general deterrence with respect to millions of possible perpetrators. But an assessment of the specific-deterrent value of a particular sentence to an particular defendant can be made only with the benefit of knowing that defendant's individual characteristics and circumstances.

If the Wilson opinion had been even-handed in its analysis, Judge Cassell would have observed that while the Sentencing Commission may be "perfectly situated" to evaluate general deterrence issues, it was "poorly suited" to consider specific deterrence--and he would have to have observed that district courts were, in fact, "perfectly suited" to make this type of individual assessment. By collapsing these two fundamental objectives of punishment, Judge Cassell lent his distinguished name to the twenty-year-old discredited assumption underlying mandatory guidelines that individual characteristics don't matter.

This type of superficial approach also undermines his conclusions about the relative weight that should be given to the various objectives articulated in section 3553. Again, Congress has certainly indicated its belief that general deterrence and incapacitation are very important goals. Yet independent Article III judges are creatures of a co-equal branch of government and have been given the responsibility of achieving individual justice by considering the individual before them. They simply cannot abdicate that responsibility, as Judge Cassell would have them do (and as they are required to do under section 3553) simply because a nationwide legislative body has indicated its desire that law enforcement objectives should be given serious consideration. There's simply no justification for appeasing Congress by weighting its concerns so heavily over individualized factors judges have also historically considered. Such deference conflicts with the lifetime tenure the Framers gave, which was designed to encourage federal judges to use their independent judgment in the face of determined political pressure not to.

On one level, it's difficult to quarrel with Judge Cassell's observation that "the Guidelines are the only standard available to all judges around the country today," yet any experienced judge or lawyer would easily be able to articulate the prevailing standards in their individual communities. What he really means is that the Guidelines are the only nationwide standard available. Even if that's so, though, why does it compel the conclusion expressed in the very next sentence of his opinion that "[f]or that reason alone, the Guidelines should be followed in all but the most exceptional cases"? He could just have logically have said "most" or "typical," which might be a reasonable conclusion to draw. By choosing the narrowest adjective, "exceptional"--and fashioning a strict standard the Booker remedial majority never even suggested--Judge Cassell concludes that district judges must abdicate the duties of an independent judiciary to incorporate individual factors and simply defer to the debatable "sense" of Congress that they are less important than general ones.

I'm afraid Judge Cassell's apparent zeal to create a post-Booker Rosetta Stone left some needed debate and reflection in its dust. The potential damage he has now caused by rushing his own subjective and unchallenged thoughts out into the legal marketplace is not likely to be lessened by his offer to give the parties ten days to object. As we saw in the dizzying days after Blakely, even ten days is an incredible amount of time and we will likely see dozens of other opinions before Judge Cassell ever issues a modified one in Wilson (if he ever does). Considering the influential position he occupied after his important (but less hastily-prepared) Croxford opinion, it's reasonable to conclude that Wilson will be cited and followed by many courts in the near future. I hope it's not too late for critical analysis like this to stop it from having the impact Judge Cassell clearly desired.

Posted by: Alex E. | Jan 15, 2005 8:33:34 PM

John Floyd:

To get the advisory guideline range the Government still does not have to prove anything beyond a reasonable doubt.

Posted by: steve | Jan 15, 2005 11:23:32 PM

Alex, you make a number of profoundly important points, and I concur that Judge Cassell should have looked to incorporate more offender characteristics in his analysis. But I also think it is very important to understand (and emphasize) that his opinion is just an expression of his view of how he should use the discretion that Booker now gives him. And I think we can be very, very sure that other district judges will opt to use their discretion differently.

Posted by: Doug B. | Jan 15, 2005 11:27:22 PM

I appreciate your comments and, like Bob in another post,
http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/embookerem_blog.html#comments, admire your continued and artful diplomacy. I'm not as optimistic as you that each of the other district judges will be as ready now to disagree with Judge Cassell's conclusion.

The fact of the matter is that his voice became sufficiently influential after Blakely that without prompt and forceful criticism of the flaws (not just the philosophy) of his opinion, it has the potential to become an all-too-easy citation for less thoughtful judges who had always found comfort in the guidelines and their harsh results.

I'm sure you'll continue to be just as diplomatic and scholarly as you've always been. But I hope you'll to use your own (equally? more?) influential position to point out--in a prominent way in the body of your blog--why Wilson's analysis is simply incorrect on certain points. Reading your partial defense of it, I think readers who don't drill down into the comments may form the mis-impression that you simply think its overall conclusion is debatable.

In these early days in a post-Booker world, there's going to be a power struggle between those who believe the guidelines remain front and center and those who believe they've been relegated to the scrap heap. You surely know better than anyone else that blogging will be a powerful part of the lightning-fast way the law develops now.

So, I hope you'll continue to let the chips fall where they may in highlighting flaws in both sides's arguments before they become gospel, especially this early one from such a leader in the field. Judge Cassell deserves your admiration but I'm not sure his opinion in Wilson deserves your gracious efforts to help explain and justify it. As a true intellectual, I'm sure he'd appreciate fair but even more forceful blows.

Continued thanks for your impressive work in this area, which is just as important and helpful as it was right after Blakely.

Posted by: Alex E. | Jan 16, 2005 4:04:02 AM

No one should have to do time for "relevant conduct." If it's not admitted to in a plea or it is not submitted to a jury and defendant found guilty on it, defendant should not have to do time for it.

And yes, there are poor lawyers out there, but there are also prosecutors who hold back information in anticipation of a plea and when they end up at trial, wait and feed the info to probation for the PSI and get the defendant to do time for something not proven in court.

Yes it does happen, we're living proof. 46 of 87 months was for "relevant conduct." And before you tell me I may not know the entire story - I do. I've read the transcripts and reviewed the file.

Interestingly, his prior probation file which would have exonerated him on the relevant conduct disappeared only after the prosecutor secured one lone piece of paper out of it that he wanted for trial. When defense asked to review the file it had been destroyed. FACT!

Posted by: ST | Jan 16, 2005 4:57:59 PM

I am the concern spouse of a convicted fellon in the same circumstances looking for retroactivity information. If you have or soon come upon any information please e-mail me. Thanks for the FYI

Posted by: Gibs | Feb 20, 2005 8:24:51 PM

Hi, I am a codefendant in a criminal drug case, Last year in July, the police raided the house my x had. I was arrested because they state a CI told them I sold them drugs. My x told them where everything was and he told them I had just gotten there 8 days prior and I did not have nothing to do with it. Well, to make a long story short I have to go to trial, my x was let out to helpthem but he ran and still running now everytime I appear in court they tell me if I do not find him, I would take the fall for it. My x was a fugitive at that time and they let him go now instead of facing their foolish mistake they are going to cover it up by making me pay for it. I have been told nobody can help me because the assist. DA states he has connects and that seems to be true. I have been through two paid attorneys one that recently got paid in full and all of a sudden did not want to go trial. The only evidence they say they have is a prostitute with multiple drug charges that was paid to come to the residence. They also state because I have a bad check which is 6 years old on my record, my word want stand against hers because it is a dishonest act. They got money from my x but I do not know if it was the money they were looking for. I do not know what steps I should take and affording another paid attorney is far away. Can you advise me of some steps I may need to take. I am not asking for a drop of the case however I am innocent of these charges and with these same people on the case there is no way I am going to have a fair trial. What should I do...

Posted by: sonya | Apr 19, 2005 6:07:01 PM

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