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February 17, 2005

Booker developments in the Second Circuit

The Second Circuit Blog here is reporting that both the SDNY and EDNY US Attorney's Offices "are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker [except] apparently [in] cases involving plea agreements with appellate waivers."  According to the post, the "Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant."

This is interesting news in light of some dicta in a Second Circuit Booker ruling today in US v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005) (available here).  The holding of Sharpley is relatively straightforward, as it concludes that "because Sharpley was sentenced at the statutory mandatory minimum and the government has not requested resentencing, this is the rare case where use of a mandatory Guidelines scheme is harmless error even under" Booker and Crosby.  And the court in passing ducked the appeal waiver issue stating "we need not decide whether Sharpley's waiver of his appeal rights, or such waivers generally, preclude any consideration of sentencing issues arising under Blakely or Booker."

The Sharpley decision also has some very interesting dicta on an issue previously spotlighted here on the blog.  As explained here, there is an argument that Booker's failure to discuss 18 U.S.C. § 3553(b)(2) might mean that the guidelines are still mandatory for child crimes and sexual offenses.  (Interestingly, Daniel Collins in his testimony at the USSC hearing today seemed to endorse this claim.)  Sharpley drops a footnote addressing this issue:

Booker excises 18 U.S.C. § 3553(b)(1) from the Sentencing Reform Act, which makes the Guidelines generally binding on courts, but does not excise 18 U.S.C. § 3553(b)(2), which makes the Guidelines binding in sentencing for convictions for certain child crimes and sexual offenses.... [But] we see no unique feature of Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines sentences for other crimes.  For this reason, we suspect that the Supreme Court’s failure to excise the entirety of Section 3553(b) was simply an oversight. Nonetheless, because any error in using a mandatory Guidelines scheme was harmless here, we reserve this issue for a case where it is necessary for decision and the parties have had a full opportunity to develop arguments on both sides.

February 17, 2005 at 01:11 AM | Permalink


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The Supreme Court did not "fail" to excise 3553(b)(2), or overlook it. The Supreme Court is a *court*, not a legislature or a law professor. Bound, like all federal courts, by Article III of the Constitution, it decides only "cases and [actual] controversies," not abstract disputes about issues. Section 3553(b)(2) was in no way implicated by Mr. Booker's or Mr. Fanfan's case. Hence, the Supreme Court did not address it. Sections 3553(b)(1) and 3742(e) were directly involved in those appeals. The precedent set in Booker governs, in principle, later cases presenting different issues. Is that too hard for the 11th Circuit to grasp?

Posted by: Peter G | Feb 17, 2005 8:54:19 PM

Oops, I meant *Second* Circuit, of course. But the comment, although perhaps too harshly phrased, applies to any jurist.

Posted by: Peter G | Feb 17, 2005 8:56:19 PM

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