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February 16, 2005

In today's great episode of how the Sixth Circuit turns...

If Court TV ever decides to create a legal soap opera, the plain error developments in the Sixth Circuit as it sorts through Booker cases would make a great story line.  As in a great soap opera, we get a new episode with a new twist each day; today's installment comes in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (available here).  Joyfully, this episode of the soap opera is a legal treat to watch, unlike a few prior episodes which made me cringe a bit. (Readers not fully engaged by the following long account of Barnett are still encouraged to ruminate in the comments about which actors ought to play which justices and judges in a Booker-inspired soap opera.)

Barnett is wonderful for many reasons, most notably because, in a split 2-1 vote, the Sixth Circuit carefully explains its remand for resentencing due to Booker even through the court holds, based on the prior conviction exception, "that there was no Sixth Amendment violation in the present case."  Writing for the majority, Judge Martin explains that, because "Barnett did not challenge his sentence on [the ground that the guidelines were mandatory] or any other ground before the district court[,] we review the district court's decision for plain error."  Moving swiftly to the third (prejudice) prong of plain error, Judge Martin thoughtfully explains why this "is an appropriate case in which to presume prejudice under the Supreme Court's decision in Olano:"

Instead of speculating as to the district court's intentions in the pre-Booker world, and trying to apply those intentions to predict the same court's sentence under the post-Booker scheme, we are convinced that the most prudent course of action in this case is to presume prejudice given the distinct possibility that the district court would have imposed a lower sentence under the new post-Booker framework and the onerous burden he would face in attempting to establish that the sentencing court would have imposed such a sentence.

This is not to discount the possibility, however, that in other cases the evidence in the record will be sufficient to rebut the presumption of prejudice.

In this thoughtful discussion and also in finding the fourth prejudice prong satisfied, the Barnett court draws significantly from the Fourth Circuit's work in Hughes and the Second Circuit's work in Crosby.  The court also concludes by noting that, "because we have concluded that the district court committed plain error in this case, that error cannot constitute 'harmless error.'" 

Judge Gwin, an Ohio district judge sitting by designation, concurs to thoughtfully explain why he believes that, in addition "to the majority's reasons offered for remand, two additional considerations warrant remand."  His opinion is a great read, and includes an interesting discussion of the appropriateness of remand "in light of one of the underlying purposes of the plain error doctrine: the economy of judicial resources."  Among other astute points, Judge Gwin notes that in many plain error precedents "appellate courts declined to remand, because to retry a case would be to expend a great amount of resources [but] where a re-sentencing is at issue, the costs are far less."  Drawing on his own experiences, Judge Gwin says "[h]aving presided over hundreds, if not thousands, of sentencings, I believe the time devoted to post-Booker re-sentencing would be small."

Chief Judge Boggs is not convinced, and he adds a number of additional rich insights to the discussion.  Here is his summary of his dissent on the plain error issue, which emphasizes that the district judge sentenced Barnett to the middle rather than the bottom of the calculated guideline range:

I agree with the court's conclusion that the district court's use of the pre-Booker sentencing rubric was plainly erroneous in light of present law, but I do not believe Barnett has shown the error prejudiced his sentencing.  First, as a factual matter, I believe the record indicates the district court felt the sentence was fair and would therefore give the same sentence post-Booker.  Second, as a matter of law, I believe the court errs by concluding that we should reverse when the record is silent as to prejudice.

February 16, 2005 at 04:43 PM | Permalink


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Illegal mandatory sentencing ranges are irresolvably problematic and necessarily affect substantial rights. Rather than try to engage in an ad hoc psychological analysis of whether such mandatory ranges affected the sentencer here, the 6th Circuit followed analogous precedent regarding sentencing-process defects such as denial of the right of allocution. In effect, due to the sentencing judge's erroneous ruling that the sentence had to be within a high-level range, the defendant here was denied the right to allocute for the lowest possible sentence. Prejudice is presumed in such circumstances, even in plain error cases. A completely rational and humane decision. Notably, dissenting Chief Judge Boggs acknowledged that if the defendant had gotten a low-end guideline sentence, he too might have presumed prejudice. The distinction Chief Judge Boggs raises, though logical, ultimately is one without a difference, because even though his example is one in which it is even more likely that the district court would have imposed a lower sentence if given discretion to do so, it does not reduce the real likelihood (i.e., more likely than not in ordinary human experience) that the range itself, particularly the minimum sentence that creates a higher starting point, tended to make the judge more likely to choose a sentence at or above the minimum.

Posted by: Richard K. | Feb 16, 2005 7:02:13 PM

Richard K. is absolutely correct. So far, the Eleventh Circuit is the only court to get this wrong.

Posted by: D.O.M. | Feb 16, 2005 8:24:31 PM

It seems to me that Richard K.'s point about the mandatory guidelines necessarily prejudicing the sentencing judge's decision by making him start with a higher range than he might otherwise have done fails to recognize what a post-Booker world looks like. The guidelines haven't been thrown out entirely--only their mandatory nature. In fact, Booker strongly implies that judges are required to calculate the guidelines sentence, that that sentence is the presumptively reasonable one, and that a departure from the guidelines sentence almost certainly merits an explanation by the trial judge. Thus, it seems to me that a sentencing judge's first step is still going to be to look to the guideline-calculated sentencing range, just like pre-Booker. That the sentencing judge is now theoretically free to depart, up or down, from that range does not change the fact that his starting point will still be the guidelines range. If this proposition is true, then why would we simply presume that a defendant's substantial rights were affected, even when he got a sentence in the middle of the guidelines range? Richard K.'s argument is that the prejudice exists because the judge was led by the nose to that range in the first place, but I don't see how that's going to be any different post-Booker. Thus, I see no problem in refusing to find a defendant's substantial rights affected when he received a middle-of-the-range sentence and has given us no reason to believe a judge would use the wider discretion on remand when he didn't use the discretion he had in the first place.

Posted by: Anon | Feb 16, 2005 10:40:48 PM

Everyone seems to be accepting the position that courts should first calculate the guidelines before considering the other factors in 18 ยง3553. This creates a presumption or, at least, nudges the judge's subconscious in the general direction of the guideline range. But, 3553 doesn't require or even imply that this is the correct approach. Keeping the judge in the dark as to the guideline range until he's worked through the other factors would be great fun, but probably isn't workable. But I'd still like to see the sentencing discussion begin with 3553(a)(1) and work down from there.

Posted by: Richard Crane | Feb 17, 2005 11:03:08 AM

In Barnett, I argued that under Apprendi(Thomas statement that Alamendarez Tores was wrongly decided) and Booker, Barnett's sentence should be maxed out at 10 years because the prior convictions were not alleged in the indictment and thus not proven beyond a reasonable doubt.
Predictibly we lost, but what happens if the Supreme Court ever overturns Alamendarez Tores. Obviously those potential armed career criminals who have already pled or found guilty are going to be very happy baecause their sentences would be reduced by at least five years. My concern is how such a decision would impact future trials. I realize under Old Chief, a person chgarged with felon in possession can stipulaqte to the prior felony. What would a reversal in Alamendarez Tores mean? Would a defendant have to stipulate to the fact that he committed THREE prior violent or serious drug related crimes? It seems that may be the case....

Posted by: Ned Germany | Feb 17, 2005 1:13:54 PM


Unlike my pre-Booker/Fanfan chit-chat, this e-mail is for fun.

Thanks for the timely updates on the briary pastures of the landscape that has been scarred by the flames, smoke, and ashes of Booker/Fanfan. In prison, retroactivity is a very serious matter. It's nice to have timely intelligence.

On the 6th Circuit soap opera, it's like this, Professor. Judge Karen Nelson Moore is so damned smart that it's not fair to other jurists. Her sense of justice and guerilla-wicked intelligence are peerless. I do a lot of peering, and she takes the field.

She's a panel of one. That's how friggin' smart she is. I talked to her in chambers only a few times. I was on the right track, but she narrowed, illuminated, and clarified the path for me until it was too bright for my pupils to swallow. On the way back to my office, I slipped on something and cracked my head on the tile floor. I awoke after seven in the evening. The Madisonville #11 bus was long gone.

By the time I got to my feet, the first course was being served at Mullane's on Plum Street: it was vegetarian. Yuk. Tofu: nice try.

Anyway, I struggled to my feet in the dark hallway of the Potter Stewart Courthouse, and I wondered why I had fallen. I looked around, and I discovered that I had slipped on extra gray matter that had spilled out of Judge Moore's ears.

That's how big her brain is. Sometimes extra leaks out.

Judge Boggs accurately charaterizes the prejudice issue that I think should win at the end of the day. Everyone can see that, right? It is perfectly logical, and it is as understandable as life on the farm. And Danny Boggs's writing style is better! It hurts me deeply to see anyone with Raymond Carver's musical sensibility for language lose a debate, but there you have it.

That Judge Moore . . . I mean. You know. There is where the law is, and there is where the law is going, and she knows where it is going. We're trying to interpret the tire tracks, and she's driving the bus.

Gotta motor,

[email protected]
OSU Law 1992
DOJ, BOP and stuff.

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