District court tonic for the Booker blues

As suggested in recent posts here and here and here covering notable circuit court opinions, I am finding the Booker jurisprudence coming from most circuits to be uninspired, to say the least.  Many circuits seem eager to seize Justice Breyer's remedial opinion (and to ignore Justice Stevens' merits opinion) in order to maintain the old sentencing order as much as possible.  In my view, very few circuit rulings grapple fully with the true impact that Booker should (or at least could) have on federal sentencing realities.

But, as I make a habit of scanning (and getting disappointed by) circuit court sentencing opinions, I should remember that the most important post-Booker action takes place in the district courts, since only a small percentage of all federal sentencing decisions are appealed.  I should also remember that the sentencing opinions coming from the district courts provide a needed and satisfying tonic whenever I am suffering from the Booker blues.

I was heartened this weekend when I found some time to explore some notable district court sentencing rulings handed down this month.  I have previously noted a few noteworthy decisions from early August, such as Judge Adelman assailing mandatory minimums in Alexander and Judge Weinstein exploring rehabilitation in Hawkins.  And anyone looking to see (and be encouraged) by additional Booker action should be sure to check out these more recent district court rulings:

• US v. Roach, 2005 WL 2035653 (N.D. Ill. Aug. 22, 2005)
• US v. Iles, 2005 WL 2043521 (E.D. Va. Aug. 17, 2005)
• US v. Peralta-Espinoza, 2005 WL 1963009 (E.D. Wis. Aug. 16, 2005)
• US v. Garey, 2005 WL 2000629 (M.D.Ga. Aug. 10, 2005)

The recent decision that excites me the most comes from Judge Joseph Bataillon in US v. Okai, 2005 WL 2042301 (D.Neb. Aug. 22, 2005).  In Okai, Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here).  Here is a brief selection from the extended opinion in Okai (which is full of Booker insight and nuance):

Under the circumstances, the court finds that it should err on the side of caution in protecting a criminal defendant's constitutional rights. The principal of constitutional avoidance mandates that the federal sentencing statutes should be construed to avoid the difficult constitutional question of whether the imposition of a harsher sentence — whether characterized as a Guidelines sentence, a departure, or a deviance — violates due process when the greater punishment is based on facts found under a standard lower than proof beyond a reasonable doubt.  Moreover, whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it is not "reasonable" to base any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt.