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February 2, 2005

The 7th Circuit speaks on retroactivity!!

With thanks to readers, I now have news that the Seventh Circuit has spoken directly to the issue of Booker's retroactivity in McReynolds v. US, 04-2520 (7th Cir. Feb. 2, 2005) (available here), and many prisoners are not going to like the news.  In an opinion authored by Judge Easterbrook, the Seventh Circuit says Booker is not to be applied retroactively to cases which became final (meaning all direct appeals were concluded) before January 12, 2005.  Here's some of the key language:

Although the Supreme Court did not address the retroactivity question in Booker, its decision in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), is all but conclusive on the point.  Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002) — which, like Booker, applied Apprendi's principles to a particular subject — is not retroactive on collateral review....

We held in Curtis v. United States, 294 F.3d 841, 843 (7th Cir. 2002), that Apprendi does not apply retroactively on collateral review, because it "is concerned with the identity of the decisionmaker, and the quantum of evidence required for a sentence, rather than with what primary conduct is unlawful". That, too, is equally true of Booker. No conduct that was forbidden before Booker is permitted today; no maximum available sentence has been reduced....

The remedial portion of Booker drives the point home.... District judges must continue to follow their approach as guidelines, with appellate review to determine whether that task has been carried out reasonably. No primary conduct has been made lawful, and none of the many factors that affect sentences under the Sentencing Guidelines has been declared invalid....

What is more, Booker does not in the end move any decision from judge to jury, or change the burden of persuasion.  The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application.  As a practical matter, then, petitioners' sentences would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system. That is not a "watershed" change that fundamentally improves the accuracy of the criminal process.

We conclude, then, that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.  That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S. Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system.

February 2, 2005 at 01:23 PM | Permalink


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Hmm... interesting that the C.J. would choose Easterbrook to write this opinion (since he, after all, was the dissenter in the 7th Circuit's attempt at Booker).

Posted by: District Clerk Battling Booker | Feb 2, 2005 2:02:50 PM

Just where in the remedial opinion does the Court say that facts are to be decided by a preponderance?

Posted by: Richard Crane | Feb 2, 2005 2:47:21 PM

Nowhere. The Breyer remedial opinion speaks extensively of judicial factfinding under advisory guidelines, but says nothing about the preponderance standard. Thomas' footnote 6 takes up the point, though it does not quite hammer it home. It points out that the preponderance standard is contained only in the Guidelines commentary (to 6A1.3), and that the Stevens majority opinion "correct[ed]" the error of this standard. But Thomas re-invokes the language of Apprendi/Blakely/Booker(Stevens)--that BARD factfinding is required for "any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant." Does that beg the question as to whether a Guidelines-enhanced sentence can be "lawfully imposed" if it is done in the judge's discretion under 3553(a), rather than under mandatory Guidelines (old 3553(b)(1))? The Breyer majority opinion answered the latter question "yes."

I think the Huerta-Rodriguez opinion from the D.Neb. this morning does a great job of expanding on the Thomas analysis. It's not just a matter of arguing over whether Apprendi/Blakely/Booker does away with preponderance factfinding. It's a matter of analyzing what degree of reliability in the evidentiary analysis is required to satisfy due process in sentencing?

Two other interesting things about the 7th Circuit opinion: (1) The Court already addressed (and apparently shut off) any possibility of en banc review. So at least one Circuit's position on retroactivity is locked in. (2) Judge Easterbrook analyzed why the identity-of-the-factfinder point is shut off by Schriro. But he neglected the burden-of-proof point: whether the correct burden of proof is required for fundamental fairness and accurate factfinding. Earlier holdings that failure to observe the BARD standard is structural error suggest the answer is yes--a point made in Huerta-Rodriguez (slip op. at 9-10 & esp. 11 n.9).

Posted by: Bruce | Feb 2, 2005 3:26:44 PM

In aswer to Mr. Crane, one must read the sentence preceding. "What is more, Booker does not in the end move any decision from judge to jury, or change the burden of persuasion." Just as importantly, the remedial decision does not require that an enhancing factor be determined "beyond a reasonable doubt." That, for those who urge that Booker signified a change to "beyond a reasonable doubt" (based for the most part on Justice Thomas' remark in a footnote to his dissent) is a true statement. The "preponderance of the evidence" standard, which was part of the law prior to Booker [see United States v. Watts, 519 US 148 (1997)] remains the law after Booker.

Posted by: Thomas J. Yerbich | Feb 2, 2005 3:33:05 PM

The 7th Circuit's opinion in McReynolds is a result in search of a rationale to justify it. The opinion never acknowledges the glaring flaw in its logic: Booker made the Guidelines advisory precisely because the mandatory Guidelines were unconstitutional, allowing sentences to be enhanced on the basis of facts not found by a jury beyond a reasonable doubt. Booker's clever fix --making the Guidelines advisory in order to remove them from the scope of Apprendi-- can't save sentences imposed under a mandatory guidelines scheme.

Intellectual honesty (admittedly a rare commodity in some Circuits these days) would require the Circuit to acknowledge that either (1) every defendant sentenced prior to Blakely (and in some cases, even after that) was sentenced by a judge who erroneously believed he or she had no discretion to deviate from the Guidelines, hence the sentence is illegal and the defendant is entitled to be resentenced, or (2) a defendant whose sentence was enhanced on the basis of contested facts found by a preponderance, instead of BARD, is entitled to some relief.

Posted by: Diogenes | Feb 3, 2005 9:01:54 PM

The article was very enlightening. My question is, "How can the Sixth Amendment right to a trial by jury," be determined not to be retroactive for those criminal defendants before the recent "FanFan" ruling? The Sixth Amendment was enacted in 1789, and the U.S. Sentencing Guidelines came about in 1986-87, yet, all defendants who were over-sentenced before the recent "Fan-Fan" decision must suffer is simply "Sick, unfair, and Unconstitutional."

Posted by: Glenn P. LaCedra | Feb 4, 2005 10:25:43 AM

In response to "Bruce," which "Huerta-Rodriguez opinion from the D.Neb." are you referring to?

Posted by: Eric H., law student | Feb 5, 2005 10:36:25 PM

I am only writing this based upon many years watching Judge's find "tax loss" which was not presented in an indictment and found by a jury beyond a reasonable doubt. Government always likes to avoid a battle of what the law says to do.
Looked at another way. If you cannot accomplish dismissal of an indictment because it has a defect in failing to allege certain facts, which the Court will look to rely upon to impose a sentence, then those facts are not essential to the elements of the alleged crime. This brings me to the point of "base offense level" versus "sentencing enhancement."
In mentioning "tax loss," the same must be for loss under fraud in 2F1.1, save for one thing. In 2T1.1 Tax Loss is in the "base offense level." The Loss under 2F1.1 is in addition to the base offense level called "specific offense characteristics."
Can a Judge be the sole finder of the facts which make up the "base offense level?" Prior to January 12, 2005 the answer must be No. If he cannot be the finder of fact for the enhancements then he cannot be the finder of the facts to trigger the base offense level for which the enhancements would then enhance.
Retroactive analysis must be broke down into Part I and Part II. Part I certainly is retroactive to all cases pending at any appeal stage when Booker/Fanfan was issued. Evidence of this is all the Certiorari's the S.Ct. granted less than a week after Booker/Fanfan was announced. Look on the web cite for yourself. supremecourtus.gov

As to whether Part I is retroactive regarding persons whose appeal time has expired, this shows that the further your case gets from the circumstances in Booker/Fanfan the more difficult it becomes to formulate the argument for relief under Booker/Fanfan. That does not mean relief is not available.
I think things to consider is whether the facts in the sentence at issue were objected to at trial. Whether they were objected to on appeal. Whether the Circuit Court simply ignored your issue on appeal to these facts, simply affirmed without comment, or whether they made any statement in their opinion that a person affected could use to trigger Booker/Fanfan relief. Whether any waiver of any of these objections can be construed, by those Judges looking to turn Booker/Fanfan into nothing instead of the huge something that it is, is a question that I am certain any Court posed with such issue will try to find anyway possible to find such construction applicable.
Next, I would connect the new construction of the Sixth Amendment to the construction of the Sixth Amendment at the time of the alleged offense. This should allow post-appeal procedures to be triggered. Looked at it another way. There is a road map but you will have to take the back roads. The interstate is all but closed.
Truly, only those who understand their rights and their facts will be able to use Booker/Fanfan to open the prison door (and it will probably be only for themselves). For otherwise what would all those prisons do if they were all the sudden empty. Most Judges today make their conclusions known due to what impact their decision will have on the United States, including the back log to the Courts, and is not limited to what simply the Constitution allows.
Lets see. Judges are asked to decide whether Judge Found Facts violate the Sixth Amendment. Supreme Court divides 5 to 4 directing that the Sixth Amendment, made applicable to the State by way of the Fourteenth Amendment, prohibits a Judge from imposing a sentence greater than the law prescribed at the time of the alleged offense, and based upon facts not presented in an indictment and found by the Jury at trial. Then Circuits go wild on this and for the most part Circuit Justices start dividing on whether Blakely applies to the United States.
Can you imagine. The Sixth Amendment requires States to do something but that something is not required by the United States to whom the Sixth Amendment is made applicable without going through any other amendment?
Next, Judges write law from the Bench in hopes that America will allow this. And now, those Americans, in prison but still Americans, are required to find there own way out, or in, if the shoe fits.
The next signal is that a Judge is going to impose a greater sentence, than that he imposed earlier, as a way to send a message to those who wish the Constitution to apply to them, that when they take that chance they surrender their current sentence for a new one. Judges are becoming predictable.

Part II is a horse of a different color. Retroactive application of "Judicial Construction of a Criminal Statute." This is the logical follow up question from Part II. The only way that Post Booker/Fanfan application of the construction the Supreme Court legislated regarding criminal statutes, 18 U.S.C. § 3553(b)(1) and 3742(e), will affect resentencing of those found to have been illegally sentenced is, if, the sentence the Court gives under its new found discretion is not greater than the time the law attached as the punishment for the crime when allegedly committed. All a person needs for evidence on this is the indictment or the PSR both of which have the date of the alleged crime.
The law being application of the guidelines as mandatory and Judge Found Facts violative of the Sixth Amendment. Otherwise, though not an ex post facto violation, the due process clause is violated if a greater sentence is imposed.
Some may wonder why can't the Court give the same sentence it gave before under Booker/Fanfan's new construction. The only answer is that any person, with standing, must find the facts that derived the base offense level from the indictment. Look at the Jury instructions to see what the Jury was asked to find, being mindful that the Jury cannot be asked to find something that the Grand Jury did not allege. Next, look at what the Jury found to derive the verdict, or, if a plea deal, then read the plea and determine what facts were admitted to by the person charged and no other.
I only write in hope of being a help to at least just one person. For if just one American is helped, regardless of whether they are in prison or not, I have done my duty.

Posted by: Lindsey Springer | Feb 6, 2005 3:05:40 PM

On Monday, January 24, 2005, the Supreme Court released Order 543 U.S. A family friend made the short list; its text follows:

Certiorari -- Summary Dispositions

The petition for rehearing is granted. The order entered xxxxxxx xx, xxxx, denying the petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of United States v. Booker, 543 U.S. -- (2005).

In this context, how does the 7th Circuit's ruling in McReynold's apply...if at all?

Posted by: Joe Adams | Feb 6, 2005 5:24:03 PM

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