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August 30, 2005

Fascinating Booker pipeline plea case from the Seventh Circuit

The Seventh Circuit, because it found the federal guidelines unconstitutional in July 2005 after Blakely and before the Supreme Court made it official in January 2005, probably has to sort through more "Booker pipeline" issues than other circuits.  And, following a pair of interesting pipeline dispositions from last week,  today the circuit gives us the fascinating US v. Berheide , No. 04-3440 (7th Cir. Aug 30, 2005) (accessible here). 

The heart of Berheide concerns loss calculations, but what has my attention is the Seventh Circuit's apparent approval (and thus indirect endorsement) of a plea agreement which provides for the guidelines to be treated as mandatory and also provides for the judge at sentencing to make findings of fact using the beyond a reasonable doubt standard of proof.  Stressing the contract principles behind plea agreements, the Seventh Circuit essentially enforces these plea terms, and (after finding a loss calculation error) remands "for resentencing under the sentencing guidelines, as mandatory."

Perhaps readers can help me out here, but my first instinct is to question whether a plea agreement really can, in fact, properly provide for a defendant to be sentenced under a system that has been ruled unconstitutional.  If such a plea agreement is sound, does anything prevent plea agreements from being developed and now executed in on-going cases that call for the guidelines to be treated as mandatory?

August 30, 2005 at 02:33 PM | Permalink


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Just because future defendants now have a right to be sentenced under non-binding guidelines does not mean that they can't waive that right. Defendants regularly waive their constitutional rights by plea agreement, and Booker's remedy doesn't really provide a constitutional right; Congress is free to promulgate mandatory guidelines so long as indictments contain and juries find all facts necessary to support minimum sentences. Why should courts stand in the way of a defendant bargaining away this lesser right but allow waiver of fundamental constiutional rights?

Posted by: Aaron Mandel | Aug 30, 2005 3:46:47 PM

I haven't read the case, but just your post. But, is it correct that the plea agreement calls for sentencing under a system that has been found unconstitutional? Booker held that mandatory guidelines were unconstitutional when based on facts found under a preponderance standard. This plea agreement, however, calls for facts to be found beyond a reasonable doubt. That doesn't sound unconstitutional (although it may be a statutory violation).

Posted by: apu | Aug 30, 2005 3:49:25 PM

I don't know about unconstitutional. The Indiana Supreme Court came out with a case last October affirming a plainly illegal sentence that was agreed to. Lee v. State 816 N.E.2d 35(Ind. October 19, 2004)(a consecutive sentence entered without statutory authority). The court said, inter alia: "Where a defendant enters a plea of guilty knowingly, intelligently, and voluntarily, there is no compelling reason to set aside the conviction on grounds that the sentence is later determined to be invalid." Id.at 39. So in Indiana, one can agree to anything--short of a death sentence for jay walking, Lee says.

The Seventh Circuit's decision is interesting in light of it's earlier-stated very different approach to illegal sentences agreed to in plea agreements. In U.S. v. Gibson, 356 F.3d 761, 767 (7th Cir. 2004), the court said: "The fact remains, however, that Gibson was sentenced to a term of imprisonment that exceeds the maximum provided in the count of conviction. To allow an illegal sentence to stand would impugn the fairness, integrity, and public reputation of the judicial proceedings that have taken place in this case." This, even though Gibson received "the precise amount of prison time for which he bargained."

And, of course, it get's more interesting, because it was an illegal sentence in Rivera that the Seventh Circuit did not touch, for lack of a cross-appeal by the government, and that Congressman Sensenbrenner got into some trouble over. Somehow I don't think the Congressman is going to be upset by Berheide.

So is it worse or better that a sentence is unconstitutional as opposed to merely illegal?

Posted by: Michael Ausbrook | Aug 31, 2005 3:14:32 AM

Only plea agreements under Rule 11(c)(1)(C) bind the court, all others are just recommendations. So as long as it's just the parties' mutual recommendation, it would probably pass muster. Even a true 11(c)(1)(C) plea might still be upheld under the (sad) waiver logic of U.S. v. Ruiz, 536 U.S. 622 (2002).

Posted by: bob jenkins | Aug 31, 2005 7:22:30 PM

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