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February 11, 2005

The active 6th and 11th Circuits stay Booker active

Continuing the Circuit trends noted here, the Sixth and Eleventh Circuits are keeping Booker busy (with decisions dated yesterday, but just made available today).

The Sixth Circuit's decision in US v. Watts, No. 03-6124 (6th Cir. Feb. 10, 2005) (available here) is an unpublished disposition that avoids creating too much further plain error confusion by simply citing both Oliver and Bruce when stating that, because of "judicial fact-finding undertaken in determining his sentence, . . . it is necessary that the district court reconsider defendant's sentence."   Appellate Law & Practice here astutely suggests that, with Watts, "the Sixth Circuit may have just given up trying to explain the results of cases involving plain error review in Booker cases."

The Eleventh Circuit's decision in US v. Frye, No. 03-16377 (11th Cir. Feb. 10, 2005) (available here) in sharp contrast talks through the Court's decision to affirm the defendant's sentence despite the fact it was imposed under mandatory guidelines.  The Eleventh Circuit concludes that "Frye in pleading guilty admitted the facts that support the enhancement of his sentence [and thus] there is no violation of the Sixth Amendment."   The Eleventh Circuit then affirms the sentence in Frye without further discussion.

Concerning Frye, Appellate Law & Practice notes here that the Eleventh Circuit had to "extrapolate on things that the defendant admitted" to find no Sixth Amendment problem with the guideline enhancements applied in the case.  Moreover, and perhaps even more troublesome, the Eleventh Circuit does not conduct a harmless error review of the application of mandatory guidelines in Frye's case, which is what the final sentence of Justice Breyer's remedial opinion for the Court in Booker seems to suggest is applicable in a case of this sort (as the Tenth Circuit explained last week in Labastida-Segura last week (detailed here)).

February 11, 2005 at 03:46 PM | Permalink


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While just based on reading the Frye opinion it may appear the court was extrapolating, and granted they could have been much more explicit in how they reached their conclusion, but upon a closer look I think extrapolating is a stretch.

The Frye court was considering whether the defendant's activities posed "substantial risk of harm to human life or the environment." The Sentencing Guidelines instructed the court to consider: (1) quantity of chemicals found at the lab (2) the manner in which they were stored (3) the duration of the offense and (4) the location of the lab, whether residential or rural. In Frye, the defendant admitted he cooked (1) large amounts of crystal meth (2) in a way that required protective gear to dispose of the chemicals (3) (the opinion is silent on length of time, but one would have to think his admission included some time frame and it's clear this was happening for many weeks) and (4) in several residential neighborhoods.

People may disagree over whether those facts establish substantial risk of harm, but I didn't see any inferences being made. And I take it there was no need for harmless error review because there was no Sixth Amendment error: the defendant's sentence was not increased based on facts not admitted by him.

Posted by: AnonClerk | Feb 11, 2005 5:18:56 PM

The Frye opinion plainly said that review of the sentencing enhancements was for plain error. See the standard of review section which ends on the top of page 4. Can you read?

Posted by: anonymous | Feb 11, 2005 5:39:27 PM

Here is the concern, AnonClerk and anonymous. Breyer says at the end of his opinion: "in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine."

I am inclined to read this sentence as did the Tenth Circuit last week in Labastida-Segura: even if there was not Sixth Amendment judicial fact-finding problem in a particular sentencing, in every case there was error in the application of mandatory guidelines and thus a reviewing court should still have to consider whether a sentence imposed under mandatory guidelines (which are no longer good law) was harmless.

Maybe this all gets swept under a plain error rug when a defendant made no objections to his sentencing at the district court level. But the language Breyer uses suggests to me that circuit courts cannot simply affirm sentences imposed under mandtory guidelines if there was no judicial factfinding; the very application of mandatory guidelines, in any and every case, is problematic in light of Breyer's remedy, and thus harmless error needs to be applied in every case.

But, I could be wrong. Other thoughts?

Posted by: Doug B. | Feb 11, 2005 10:23:33 PM

I am the appellate lawyer in Frye. The family retained me after the CJA lawyer filed an Anders brief and it was returned by the 11th with the issues that they saw needed to be raised. Our argument, while now considered "one of first impression" did not merit oral argument. He received a 548 month sentence. - was that his guilty plea was not voluntary. as evidenced by a motion to withdraw filed the morning of the taking of the plea, the plea colloquy itself and the subsequent sentencing hearing.
We challenged the sentence imposed on him, which involved an enhancement as organizer and the imposition of environmental cleanup assessments. These factors were neither admitted to in his plea agreement, were not charged in the indictment, nor found by the jury judge beyond a reasonable doubt.
As is the practice in our district, the prosecution submitted a massive factual resume including everything, including the kitchen sink and from which the appellate court extrapolated what it apparently felt it needed. Missing, of course, is any mention of the fact that the Cecil pretty much took up his own defense and objected to most of this "procedure".
An other feature of this case is that Pryor is one of the judges.

Posted by: Domingo Soto | Feb 20, 2005 1:36:27 PM

I was wondering what the sentence 3 offence of Crystal meth. was.and driving under supension.

Posted by: Michele | Apr 25, 2005 8:11:22 PM

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