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July 10, 2005

Sentencing from the halls of Congress

In response to AG Gonzales' recent call for minimum guidelines, one thoughtful editorial suggested that if certain members of Congress are truly concerned about "judges legislating from the bench," then perhaps lawmakers should stop trying "to sentence convicts from the halls of Congress."  But, as detailed in this fascinating front page article in today's Chicago Tribune, House Judiciary Committee Chair James Sensenbrenner and congressional counsel Jay Apperson apparently believe they should oversee sentencing outcomes from the halls of Congress.

The full Tribune article is a must-read, not only for those interested in sentencing law and policy, but also for anyone concerned about inter-branch relations in the federal system.  Here are snippets:

In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn't believe a drug courier got a harsh enough prison term.

Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong.  He demanded "a prompt response" as to what steps Flaum would take "to rectify the panel's actions" in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute....

Flaum declined comment on the situation, saying he does not publicly discuss matters pending before the court.  He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case.  But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong.

[Jay] Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties. Further, the letter may be an intrusion on the Constitution's separation-of-powers doctrine, or, at least, the latest encroachment by Congress upon the judiciary, analysts said.

The case at issue in this latest sparring between a member of Congress and the judiciary is United States v. Lissett Rivera, No. 02-3238 (7th Cir. June 16, 2005), amended (June 28, 2005) (available here).  The Rivera decision, which was authored by Judge Frank Easterbrook, involves a procedurally complicated discussion of the guidelines and mandatory minimums (additional discussion of the Rivera case can be found over at the Seventh Circuit Blog in this post). 

As the Tribune article explains, the ruckus has arisen in large part because the government in Rivera failed to appeal the district court's failure to impose a 10-year mandatory minimum sentence (although, as Peter G. notes in the comments to this post, that minimum perhaps was rightly not applied, despite the Seventh Circuit's statement to the contrary).  According to the article, "Sensenbrenner also wrote a letter to Atty. Gen. Alberto Gonzales, demanding that the decision be appealed further and that he investigate why the U.S. attorney's office in Chicago did not appeal Rivera's sentence.  Bryan Sierra, a spokesman for the Justice Department, said Sensenbrenner's letter was being reviewed."

July 10, 2005 at 08:38 AM | Permalink


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Is that not an ex parte communication that would subject a lawyer to discipline by the state bar as well?

Posted by: Laura | Jul 10, 2005 6:54:03 PM

Doug: You shouldn't frame the background as involving the government's "failure" to appeal the sentencing judge's "failure" to impose a mandatory minimum. From reading the opinion, a person familiar with federal drug sentencing can see that the judge properly found, in reliance on unanimous case law of eight circuits (including the Seventh) that the mandatory *didn't apply.* The prosecutor at sentencing agreed the mandatory didn't apply, and expressly concurred in the sentence the judge imposed. Of course, the government didn't appeal! How could they, when the judge imposed the sentence the prosecutor asked for? What the cases say is that the jury, when rendering a post-Apprendi verdict on a federal drug conspiracy count, finds the presence or absence of a threshhold quantity based on what the conspiracy as a whole "involved." This sets the applicable statutory maximum. Whether a mandatory minimum applies to a particular defendant, however, is a different question, to be decided by the judge not the jury, on the basis of the defendant's personal "relevant conduct," not the scope of the conspiracy as a whole. The sentence simply wasn't illegal. The best recent discussion of this point is US v Colon-Solis, 354 F3d 101 (1st Cir. 2004), but the unbroken line of cases goes back to 1992. Of course, I agree with you that the bigger and more important question is the flatly unconstitutional conception of "oversight" that Sensenbrenner's committee (and staff) seem to have. The sad footnote to the case is that because Judge Easterbrook's opinion wrongly asserts that the sentence was illegal (although, the panel agrees, final and non-correctible because the gov't didn't appeal) the defendant-appellant was denied a Booker remand to which she was probably entitled.

Posted by: Peter G | Jul 10, 2005 10:29:36 PM

Peter, you raise a set of interesting points, on a legal issue which you obviously know well. I've tweaked the post to reflect another way to look at the facts.

Posted by: Doug B. | Jul 11, 2005 1:02:41 AM

My understanding is that jury, not the judge, found the qualifying amount (5 Kilos) and thus the district court should have imposed the statutory minimum. Colon-Solis does not hold that judges may disregard a jury's finding of fact. Colon-Solis concerned a judge's finding of the proper amount and, in that context, an individualized finding of amount is proper. Once the jury has said 5 kilos, the court cannot step in and say, "well, actually for defendant X, it was only 1 kilo." [Though the court could find that the evidence was insufficient or reverse the verdict for some other reason not relevant to this discussion]. The court could also have gone lower via 3553(e) or 3553(f), but I don't believe either of those narrow exceptions applied to Rivera. so Sensenbrenner was right to say that Rivera should have gotten the minimum, but he was wrong to say the 7th should have sua sponte created a cross-appeal. I'm not sure whether 97 months is "lucky," but its two years better than what Rivera would have received had the government cross-appealed.

Posted by: butterpion | Jul 11, 2005 6:51:45 PM

Butterpion: I guess we read the First Circuit cases differently. I have recently re-read them all, for a post-Booker resentencing in D.P.R. to which they apply. I suppose you've read them also, and see something different from what I see. (AFPD Bill Theis's comments on the 7th Cir blog to which Doug B links are also very important.) That's what keeps lawyers in business, I suppose.

Posted by: Peter G | Jul 11, 2005 11:09:17 PM

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