6th Circuit discusses post-Booker appellate review and plea dynamics

The Sixth Circuit today in US v. Davidson, No. 03-6544 (6th Cir. May 18, 2005) (available here) spoke directly to the nature of post-Booker appellate review.  In short, more "same as it ever was" for reviewing guidelines calculations:

As we have previously suggested, the sentencing structure set out by the Booker remedial opinion cannot function absent appellate review of a district court's Guidelines calculations. The clear Booker requirement that the district court "consider" the applicable Guidelines range, would otherwise be meaningless. We continue, in reviewing individual Guidelines determinations, to apply the standards of review we applied prior to Booker. Accordingly, for purposes of determining the Guidelines recommendation, we continue to accept a district court’s factual finding that a defendant possessed a firearm during a drug crime unless it is clearly erroneous, but to subject a district court’s finding on a mixed question of law and fact — such as the existence of a substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(5)(B) — to de novo review.

Davidson is also quite interesting because of a bit of sparing within the court about whether the prosecutor's agreement to certain terms in a plea agreement, but then seeming to back away following a contrary PSR, was reason for concern.  Judge Moore, writing for the majority, dropped a footnote (footnote 6) to say:

We emphasize that we do not condone the behavior of the Assistant U.S. Attorney ("AUSA") responsible for this case at the district court.  The AUSA's behavior was, at a minimum, inconsistent with the spirit of the plea agreement, in which the United States agreed to recommend to the district court that the Firearm Enhancement not be applied against Mrs. Davidson. However, despite this representation, the United States did not object to the Presentence Report ("PSR") prepared in regard to Mrs. Davidson, did not request at sentencing that the district court reconsider the probation office’s recommendation, and did not make any objection after the district court imposed a sentence clearly contrary to the recommendation and stipulation in the plea agreement.... In a situation where the United States had obtained guilty pleas from two defendants only after it had "agree[d] and stipulate[d]," J.A. at 44, R. 71 at 4 (Mrs. Davidson's plea agreement); J.A. at 51, R. 72 at 4 (Mr. Davidson's plea agreement), that Mrs. Davidson should not be assessed the Firearm Enhancement, such acts and omissions fall far below the standard of conduct expected of federal prosecutors.

But Judge Gibbons concurred to clarify that she did not agree with this footnote in Judge Moore's opinion:

Footnote 6 appears to impose a duty on federal prosecutors to reiterate a recommendation in a plea agreement at every possible step in the proceeding, even when the recommendation is inconsistent with the true facts. Ideally, a recommendation that the district court not apply a particular enhancement should be based on an expectation that the court will find that facts supporting the enhancement do not exist. Sometimes, however, the government’s information is imperfect, and either the presentence report or evidence at the sentencing hearing reveals an inconsistency between the true facts and the factual findings necessary to support a decision that an enhancement does not apply. Here, while we do not know what information the parties had when they entered into the plea agreement, we know that both the presentence report and evidence at the sentencing hearing support application of the firearm enhancement to Mrs. Davidson. In this type of situation, a prosecutor's vigorous advocacy of factual findings that do not comport with reality is itself problematic. Moreover, a prosecutor can adhere to a recommendation of a plea agreement without repeating its terms at every opportunity. The district court was of course fully aware of the terms of the plea agreement and was required to make its findings based on the record.  All the parties knew this, and the prosecutor had to make a judgment call about an appropriate course of conduct, given the circumstances.  I cannot say that the prosecutor here chose wrongly.