« Hearing the sweet sounds of Booker | Main | Today's Booker blogsphere buzz »

February 2, 2005

The 2d Circuit speaks on Booker!

When it rains it pours: the Second Circuit has jumped into the Booker fray today with decisions in US v. Crosby, 03-1675 (2d Cir. Feb. 2, 2005) (available here), and US v. Fleming, 04-1817 (2d Cir. Feb. 2, 2005) (available here).  It seems Crosby is the really big decision (though Fleming involved an affirmance), and together they provide 53 more pages of circuit court wisdom on Booker

Seeing that both were written by my former boss Judge Jon O. Newman, and that they aspire to cover a lot of ground post Booker ground, I think it is time to declare today the biggest post-Booker day to date.  To whet your appetite as you check the toner on your printers, here's the set up of Crosby:

[W]e believe that in the aftermath of a momentous decision like Booker/Fanfan, which will affect a large number of cases confronting the district judges of this Circuit almost daily, it is appropriate for us to explain the larger framework within which we decide this appeal.

And here is Crosby's very useful summary of the state of federal sentencing (at least in the Second Circuit) after Booker:

[W]e can identify several essential aspects of Booker/Fanfan that concern the selection of sentences.  First, the Guidelines are no longer mandatory.  Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a).  Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (I) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence.  Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.

These principles change the Guidelines from being mandatory to being advisory, but it is important to bear in mind that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum.  On the contrary, the Supreme Court expects sentencing judges faithfully to discharge their statutory obligation to "consider" the Guidelines and all of the other factors listed in section 3553(a). We have every confidence that the judges of this Circuit will do so, and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice. In short, there need be no "fear of judging."

February 2, 2005 at 04:25 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The 2d Circuit speaks on Booker!:


First, Judge Newman surely deserves to be the one to speak for the Second Circuit on this. For nearly three decades he has been concerned with inequities in sentencing and has always been sensitive to the importance of, and defects in, the guidelines.

Second, his opinion is significant not only for sentencing judges but is perhaps more important for those concerned with the the appellate ramifications of Booker. It provides the broad opportunity for relief for anyone mistakenly sentenced under the impression that the guidelines were mandatory, even if no objection was made. The relief is not necessarily a full resentencing, however. Rather it is a remand for reconsideration by the judge, essentially to determine whether the plain error consideration of prejudice is met -- that is, to say whether, had the court known of Booker, the sentence would have been different and a resentencing should be had. From this latter determination, a party may appeal to the Circuit, which retains jurisdiction.


Posted by: David Lewis | Feb 2, 2005 5:06:35 PM

Crosby is a fantastic decision. A must read for all, especially those who practice in the 2d Circuit.

But Fleming (also by JON, and argued the same day as Crosby) is also a must read, for it is, essentially, the first appeal of a post-Booker sentencing! Fleming involved the appeal of a sentence imposed upon revocation of supervised release. And as Judge Newman explained, the sentencing phase of a revocation proceeding, in the pre-Booker world, was basically the same as a sentencing phase in the post-Booker world (in light of Breyer's remedial opinion). Specifically, the Guidelines range was not mandatory, but need only be "considered" by the district court, in conjunction with other 3553(a) factors.

Another similarity is that the standard of review of a sentence imposed upon revocation was "reasonableness." (Well, maybe it used to be "plainly unreasonable"-ness, but what's the difference, anyway?). Therefore, in reviewing Fleming's pre-Booker revocation sentence in the wake of Booker, this decision is essentially the first decision reviewing a sentence imposed after Booker.

And the decision is terrific on both scores. First, regarding the requirement that the sentencing court "consider" the Guideline range, Fleming holds that it will be sufficient if the court is aware of the range. No precise incantation is required. Nor is there any requirement that the court must "weigh heavily" or treat as presumptive that range -- as Judge Cassell erroneously concluded in Wilson.

Second, regarding the reasonableness standard of review, Fleming again gets it right. Extending the discussion in Crosby, which noted that "reasonableness in the context of review of sentences is a flexible concept," Fleming adopts a posture of deference to disrict courts: "The appellate function in this context should exhibit restraing, not micromanagement." And while "the brevity or length of a sentence can exceed the bounds of 'reasonableness,' we anticipate encountering such circumstances infrequently." This is a clear signal that the 2d Cir will not be examining all sentences outside the advisory Guidelines range with a fine-tooth comb on appellate review.

In short, Fleming holds that in the post-Booker world, (1) sentencing courts must simply be aware of the Guidelines range, and (2) appellate courts will exhibit "restraint" in conducting reasonableness review of a sentence, whether inside or outside that range. For defense lawyers who practice in the Second Circuit, Fleming is a great decision.

Posted by: Yuanchung Lee | Feb 2, 2005 6:19:57 PM

Not to look at the empty half of the glass too closely, but I find it odd and disturbing that in 41 pages JON apparently couldn't find room to mention that 3553(a) does not merely make it mandatory to consider various factors (including the guidelines) but also makes it mandatory to *impose* the sentence which is "sufficient but not greater than necessary." To read the opinion you would think that 3553(a)'s substantive standard is simply that the district court impose a reasonable sentence. Not so. Also, I perceive a lack of due process in the proposed initial determination, on remand from pending appeals, whether to resentence, based on an assessment of what the court "would have done." The judge cannot know what sentence s/he would have imposed under 3553(a), rather than "under the guidelines," until *after* hearing the defendant's side effectively represented by counsel and *after* hearing the defendant's personal allocution. Yet in this made-up remand procedure, the defendant personally has no right to be heard, and defense counsel precious little.

Posted by: Peter G | Feb 2, 2005 7:54:23 PM

Echoing Peter G.'s comments, what if the defense attorney wants to put on evidence at the decide-whether-to-resentence hearing? E.g., wants to put on the stand the paraplegic family member affected by the defendant's lengthy prison term. Is it really O.K. for the defendant to be ABSENT from such evidentiary hearings? I've never heard of such a thing.

Posted by: Jill | Feb 2, 2005 9:25:07 PM


I agree with your first observation and this opinion definitely has a "committee" feel about it but I don't think your second concern is as serious a problem as you fear.

Unless a judge severely restricts briefing, nothing will prevent a lawyer from providing a thorough discussion on formerly-irrelevant 3553(a) factors. Competent lawyers will also visit their clients and help them generate a similarly-convincing letter (usually, not always, the most effective way for defendants to communicate their thoughts to judges).

The ability to do all of this without producing the defendant was obviously designed to make the process of remanding all these direct appeals as painless as possible. While I would have preferred giving judges the choice, not producing the defendant can have some practical advantages. I have one illegal-reentry client who was sentenced post-Blakely but also post-Mincey (2d Cir. mandating continued application of the guidelines) in the EDNY, who is now serving her sentence in a Florida facility. She got there via the the BOP's circuitous route from New York (through Olkahoma in a several-week long journey). She was very reluctant to retrace her difficult route and travel all the way back only to learn that her sentence wouldn't change after all and was considering waiving any resentencing (which could eliminate the five months she has to go). Now, I can more intelligently advise her whether the trip is worth it.

The compromises in this opinion, like those in Booker itself, I believe, will give district judges needed flexibility, while serving the objective of helping to stave off precipitous congressional action. While I don't agree that should be a factor in formulating judicial policy in this type of case, I'm realistic enough to know that it is.

Posted by: Alex E. | Feb 2, 2005 9:32:24 PM

Plus, the court did not actually prohibit oral argument or bar the defendant from being present. It said only "the District Court should obtain the views of counsel, at least in writing, but 'need not' require the presence of the Defendant." So, it looks like it would be a discretionary call for the court. I don't see any reason why counsel couldn't argue that a more in-depth proceeding was necessary in certain cases like the one Jill posits. Counsel could argue that the testimony of the paraplegic family member was necessary to make the threshold determination required under Crosby.

Posted by: Alex E. | Feb 2, 2005 9:43:28 PM

Good point, Alex (that the opinion doesn't PROHIBIT the defendant from being present). And it's certainly true that our clients often suffer during the often-torturous trips to bring them back to court from distant prisons.

Posted by: Jill | Feb 2, 2005 10:46:45 PM

By the way, in all the hoopla over Crosby and Fleming, let's not overlook the Second Circuit's per curium decision today in Green v. United States, where the court considered the 2255 petition of an inmate who had previously been denied 2255 relief on Apprendi grounds. The court decided that "neither Booker nor Blakely apply retroactively to Green’s collateral challenge. Accordingly, Green’s application to file a second or successive Section 2255 petition is denied." Bad news for previous 2255 filers in the Second Circuit.


Posted by: Alex E. | Feb 3, 2005 12:11:33 AM

Yes, yes, Crosby / Fleming do not give the defense side everything we'd want. Yes, there is the parsimony command, again ignored. And, yes, maybe it'd be better if every single case on appeal got remanded for a full resentencing, with the D present and a new PSR prepared containing now relevant 3553(a) factors.

But let's be realistic here. Crosy is great for many, many cases pending on appeal -- especially those cases (1) in which plain error review would've applied because the sentencing occurred before Blakely and no 6th Amendment objection was lodged; (2) in which no true 6th Amendment violation occurred (e.g., your typical illegal reentry case, assuming that Almendarez-Torres is still good law); and (3) in which the defendant stipulated to facts and/or to a particular guidelines sentence in a plea agreement (and therefore complies with the Blakely rule). Under Crosby, defendants in ALL of those cases will now have a realistic opportunity to seek a lower sentence before the district judge.

No other circuit has yet gone so far as to allow resentencing in the 2nd and 3rd category of cases. The 4th and 6th Circuit cases only address cases involving unproved enhancements -- i.e., cases w/true 6th Amendment violations.

And as Alex E. pointed out, at the so-called "threshold" proceeding on remand, where the judge is to determine whether s/he would've imposed a materially different sentence had s/he relied on the post-Booker sentencing scheme, a defense lawyer will have the opportunity to present whatever argument or evidence necessary to convince the judge. Though a full resentencing may be preferable, this is not a bad solution.

Posted by: Yuanchung Lee | Feb 3, 2005 8:48:04 AM

And, if the Second Circuit issues a decision soon in the appeal I argued a few days after Booker, we may have more clarity in category (2), because it was an illegal-reentry, plain-error, case in which the only enhancement was 16 points for removal based on an aggravated felony drug offense.

So, under Crosby, can the government argue plain or harmless error to oppose an application to remand for reconsideration or is the defendant entitled to that relief, even though he or she may lose in the district court?

Posted by: Alex E. | Feb 3, 2005 10:33:04 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB