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February 4, 2005

Inside the Beltway Booker news and plans

Though I expect court action will continue apace nationwide, it is now official that the fine folks in DC will be joining in the Booker festivities.  As noted here, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled for February 10 an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."   

I have heard rumors about who will be testifying, though I am not sure when the list of witnesses will be finalized and made public.  Especially now that Alberto Gonzales has been confirmed as AG, I will be especially interested to see if the Justice Department uses this House hearing to declare its views on the post-Booker world and whether DOJ believes legislative action is needed.  In this regard, I was encouraged to see that, in this Washington Post article about the Gonzales confirmation, former DOJ official Douglas Kmiec says Gonzales believes "decisions are best resolved in study and deliberation, not press release."

Meanwhile, in an important related development, a recent BNA article entitled "Sen. Specter Willing to Wait Before Addressing Federal Sentencing Guidelines" (which I do not think is available on-line) quotes the chair of the Senate Judiciary Committee as saying that a response to Booker  "will have to take its turn" on the committee's agenda.  Here's a selection from the article:

While reiterating his intention to address the guidelines at some point in this congressional session, Specter told BNA, "It will have to come after [Attorney General nominee Alberto] Gonzales, class actions, bankruptcy, asbestos and judges."

Specter indicated that, for now, he was content to let lower courts apply and interpret the Supreme Court's Jan. 12 ruling in United States v. Booker, which held that the guidelines violated the constitution by requiring judges to increase sentences on the basis of facts not heard or decided by a jury.  "Let's see what the courts are going to do," said Specter. "The courts have a lot of leeway -- we'll take a little time and let it percolate for a while and get some experience."

This quote is very encouraging.  It echoes the "go slow" advice to Congress set out in this post and recently coming from the ABA, leads me to think we may not see Senate Hearings on Booker this month, and makes me even more confident that a congressional response will be deliberative and allow for broad examination of post-Booker law and practice by the US Sentencing Commission and others.  (Recall that the USSC has its own hearings planned for February 15 and 16, although an official notice does not yet appear on the USSC website.)

February 4, 2005 at 07:44 AM | Permalink


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Professor Berman: The 4th Circuit has weighed in as to how they will handle direct review cases on appeal in United States v. David C. Hughes, #03-4172 on January 24, 2005. It would seem they will remand for resentencing (quoting Booker), based on enhancement increases not heard or ruled on by the jury.
Citing the discretionary authority flowing out of the Booker decision they state: "Because the district court guidelines range before imposing a sentence on remand, the same calculation issues already raised by Hughes are likely to arise again. We therefore take this opportunity to address this."
Slavishly, they affirm each enhancement. So, since the Supreme Court took the position that those enhancements had to be ruled on NOT by the district judges, but by the jury, the Circuit Court simply sits in the jury chair and again affirms the enhancements.
What is the argument against such an arbitrary type of remand? The enhancements don't exist with no more guidelines, but they recalculate as though they do, and use the guidelines for the "correct range."
Please let me hear from you. My father 77 was sentenced to 6 years for wire fraud and his base level was 6. None of the enhancements were brought before the jury. He has an appeal pending and waiting for remand. Your blog has been very helpful. Thank you

Posted by: Jo Ann | Feb 4, 2005 3:39:35 PM

(sorry about the typo}I left out a few key words in the previous post.
"Because the district court must consider the correct guideline range before imposing a sentence on remand"

Posted by: Jo Ann | Feb 4, 2005 3:48:55 PM

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