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April 23, 2005

A manual of Booker defense strategies

I just received from the Federal Defender Office of the Eastern District of Pennsylvania an impressive document entitled "Booker Litigation Strategies Manual: A Reference for Criminal Defense Attorneys." Recently updated, this document runs 75 pages and provides a collection of strategies and ideas drawn from federal defenders from around the country. This version, which is available for download below, includes bookmarks and hyperlinks to aid navigating around the document. 

I am glad to receive and be able to share this valuable document, and I have been told that future updates will be posted at this Blakely/Booker page of the website maintained by the Office of Defender Services Training Branch (ODSTB) of the Administrative Office of the U.S. Courts.  That page also has Fran Pratt's outline of post-Booker decisions and other helpful Booker materials.

Download latest_booker_defense_strategies.pdf

April 23, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Indiana's brewing Blakely fix

Michael Ausbrook over at INCourts, who has developed into a leading commentator on state Blakely developments, has the latest details here on the legislative Blakely fix brewing in his home state.  As Michael details, the pending legislation moves Indiana to advisory guidelines (i.e., the legislation Booker-izes rather than Blakely-izes the state's structured sentencing system).  Here is the heart of Michael's account:

There is some very bad, i.e., confusing and possibly contradictory, drafting in some of the details.  But the major thrust of the legislation is pretty clear.  Out with fixed, presumptive sentences, and in with "advisory sentences," that are not even all that advisory.  There is no statutory requirement that courts consider them....

In the new regime, however, trial judges "may voluntarily" consider the new advisory sentence, but they do not have to.  And it would appear that trial courts will be able to impose maximum sentences for good reason, bad reason, or no reason at all.

April 23, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Capital case chronicles

From around the blogsphere, here are some compelling accounts of compelling capital cases:

April 23, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

April 22, 2005

The weekly wrap-up

It's that time again: time for me to take stock of the week that was by organizing thematically and linking below recent sentencing highlights.  (Previous examples from this month are here and here.)





April 22, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

In good (elitist?) company

Thanks to Howard Bashman at How Appealing, I see that on-line here is a piece from Legal Affairs magazine by Lincoln Caplan which uses this blog/blawg as a jumping off point for making observations about blogs and blawgs.  Also getting kind mention, along with How Appealing, are The Volokh Conspiracy and Underneath Their Robes.

If you do not know the difference between blogs and blawgs, you will have to read Lincoln Caplan's article.  Based on the article's themes, I apparently risk betraying my caste were I to bother to explain the distinction.  For, according to the article's concluding line: "while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs."

In all seriousness, thanks to Legal Affairs and Lincoln Caplan for the spotlight.  However, I am now a bit worried that the article will reveal to Tom DeLay that Justice Kennedy is not the only SCOTUS member who does research on the internet.

April 22, 2005 | Permalink | Comments (0) | TrackBack

Still more voices speaking out against brewing Booker fix

This afternoon I received copies of two more letters addressed to the House Judiciary Committee expressing opposition to the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here). These letters, both of which are available for download below, come (1) from the Chamber of Commerce and other industry groups, and (2) from 32 former U.S. Attorneys and DOJ officials. 

Both of these letters spotlight problems with specific aspects of H.R. 1528 and more broadly echo the "go slow" sentiments expressed by so many in the wake of Booker.  They also join the opposition to H.R. 1528 already expressed by Families Against Mandatory Minimums and Frank Bowman and Jim Felman and a large group of law professors and the US Sentencing Commission.

Download business_letter_re_hr_1528.pdf

Download former_usadoj_re_hr_1528.pdf

UPDATEI have also now received, and make available for download below, a two page document expressing opposition to the Booker fix provisions from the ABA entitled "Position Paper of the American Bar Association Regarding Section 12 of HR 1528."  Among its interesting features, this ABA document includes a section that directly responds to some of the potentially misleading rhetoric in the document reportedly developed by Representative Sensenbrenner's office about the Booker fix discussed in this post last week.

Download aba_hr1528_position_paper.pdf

April 22, 2005 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

More sentencing rhetoric and reality inside the Beltway

This morning I received a copy of an interesting research paper that apparently is making the rounds in Washington to support the enactment of mandatory minimum penalties in the wake of Booker.  I do not have all the details concerning the origins and use of this research paper, but the document, which is entitled simply "Mandatory Minimum Penalties" and principally promotes the mandatory minimum penalties appearing in the "The Gang Deterrence and Community Protection Act of 2005," is a fascinating read even without knowing its background.  (FAMM's website here provides  background on the gang bill and a different view of all of these issues.)

This document, which can be downloaded below, is full of rhetoric concerning the value and need for mandatory minimum penalties (quote from page 2: "Given the elimination of an effective determinate sentencing guideline system [in Booker], Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public.").  The document also includes a section extolling the benefits of the death penalty (heading from page 16: "Research Shows That the Death Penalty Saves Lives.") . 

Many claims in the document are arguably accurate, although the presentation is full of over-statement and is quite one-sided on all the issues covered.  For example, the document asserts at pp. 8-11 that "Every defendant may obtain a reduced sentence" based on providing substantial assistance in the prosecution of others (emphasis in original) and claims that without "stiff mandatory minimum sentences ... offenders have no incentive to cooperate with authorities."  But, of course, offenders without information about other offenders cannot get a departure based on substantial assistance no matter how much they cooperate, and federal offenders not subject to mandatory minimum sentences have lots of incentives to cooperate (see, e.g., Rowland and Fastow, as just two white-collar examples.)  Similarly, a footnote in the discussion of the death penalty asserts that "specific data show[s] that the death penalty system, far from broken, is indeed working well," though there is no mention of innocent persons released from death row or the high reversal rate of death sentences.

I understand that an effort is underway to develop a "response" to this document in order to provide a more balanced view on these sentencing issues.  (Of course, the US Sentencing Commission over a decade ago in its 1991 USSC report on mandatory sentencing effectively presented a more balanced view and documented some failings and harms of mandatory sentencing provisions ).  Perhaps readers can use the comments to note aspects of this document that merit a more complete account of the reality that should accompany all the rhetoric.

Download mandatory_minimum_paper_on_benefits.rtf

April 22, 2005 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1) | TrackBack

Morning sentencing stories

Here are just a few of the many sentencing items in the morning papers:

April 22, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

April 21, 2005

The enduring the importance of Almendarez-Torres

Thanks to fellow bloggers, I see some two interesting developments on the "prior convictions" front: (1) Michael Ausbrook over at INCourts has this insightful post which discusses an Indiana Supreme Court ruling on the application of the state's repeat sexual offender sentencing enhancement; and (2) Appellate Law & Practice reports here on the Fifth Circuit's mass rejection of  appeals challenging sentencing enhancements based on prior convictions.  Both items reinforce my sense that the Almendarez-Torres "prior conviction exception" is a terribly important aspect of the modern sentencing universe and that the Supreme Court ought to definitely resolve its status as soon as possible.

April 21, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack

More news on the Enron Nigerian Barge sentencing

From talking to a reporter this afternoon, I got the impression that former Merrill Lynch executive Daniel Bayly's below-guidelines sentence of 30-months imprisonment for his role in the Enron Nigerian barge fiasco (basics here) was the result of a four-level departure for "aberrent behavior" and that the District Judge Werlein's guideline calculations led him to reject a number of the findings made by the "sentencing jury" in the case (details here).  The word is that Bayly plans to appeal his conviction; I wonder if the government might be inclined to appeal his sentence.

Meanwhile, this afternoon according to this Bloomberg News story, Judge Werlein gave a 46 month sentence James A. Brown. The longer sentence for Brown (the hardest working man in snow business?) can be explained, in part, because he was also found guilty of perjury and obstruction of justice. Nevertheless, compared to the 33-year sentence urged by the government, the sentence of less than 4 years for Brown again raises questions spotlighted here about whether we are seeing a pattern of leniency in white-collar cases post-Booker.

Peter Henning over at the White Collar Crime Prof Blog has a thoughtful discussion of these sentences and related issues in this post.

April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

USSC speaks out against H.R. 1528

Late yesterday I wondered in this post about when we would hear from the US Sentencing Commission concerning the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here).  I am very pleased to see that just posted on the USSC's website, and available at this link, is an effective and forceful letter addressed to the House Judiciary Committee regarding H.R. 1528, dated April 19 and signed by all the USSC Commissioners.

This letter from the USSC speaks out against a number of the drug sentencing provision of H.R. 1528, and also assails the Booker fix provisions for its "hasty, piecemeal" response to post-Booker issues.  Among other good insights, the USSC letter suggests it would be wise to have "additional hearings on the specific sentencing provisions of H.R. 1528 and the state of federal sentencing generally" before enacting any legislation in response to Booker.  Kudos to the USSC for getting out in front of this issue.

April 21, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

Interesting 8th Circuit discussion of forfeiture and sentencing issues

I cannot let a day go by without noting some notable circuit court ruling, and the Eighth Circuit has provided blog-worthy material with its decision today in US v. Huber, No. 03-2510 (8th Cir. Apr. 21, 2005) (available here).  Huber concerns convictions for farm-program benefits and crop-insurance payment fraud, and much of the opinion is devoted to a discussion of an error in calculating the amount of a forfeiture order.  But Huber concludes with an interesting sentencing discussion: the court remands for re-sentencing because the district court had departed downward based in part on the forfeiture calculations, and in so doing the court notes, but then artfully dodges, questions about proper guideline calculations.   The Huber court also has this to say about plain error review in the Eighth Circuit:

Our plain-error analysis in Booker cases is currently under development in United States v. Pirani, No. 03-2871, and all cases raising issues of plain-error are awaiting an opinion in Pirani.

April 21, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Interesting work from the Wisconsin Supreme Court

The Wisconsin Supreme Court, through a pair of decisions concerning the application of the state's truth-in-sentencing laws, has documented today that there are plenty of contentious sentencing issues that have nothing to do with Blakely.  As detailed in this AP report, state Supreme Court today "on 4-3 votes in separate decisions rejected petitions by two inmates to have their sentences modified to reflect the less harsh penalties from the second truth-in-sentencing law that took effect in 2003."  (Recall that last fall, as detailed in posts here and here and here and here, the Milwaukee Journal Sentinel ran a terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing.")

The specifics of the decisions in State v. Trujillo, No. 2003AP001463-CR (Wisc. Apr. 21, 2005) and State v. Tucker, No. 2003AP001276-CR (Wisc. Apr. 21, 2005) (both available for download here) will likely only be of great interest to Wisconsin lawyers.  However, I found the following passage from Trujillo a suprisingly candid statement of a factor that likely impacts many high courts considering sentencing challenges:

We are also concerned about the possibility of opening the floodgates if we hold that the reduction in maximum sentences for TIS-II crimes constitutes a new factor.  Between the time that TIS-I was enacted on December 31, 1999, and the date of TIS-II's implementation on February 1, 2003, more than 10,700 adults were admitted into Wisconsin's prison system with one or more TIS-I sentences. If we agree with Trujillo's new factor analysis, there is certainly the potential that most TIS-I offenders could seek a sentence modification on similar grounds.

April 21, 2005 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack

Are the federal guidelines too tough on white-collar offenders?

UPDATE at 1:30pm:  The Houston Chronicle reports in this article that this morning former Merrill Lynch executive Daniel Bayly received a sentence of 30-months imprisonment for his role in the Enron Nigerian barge fiasco.  Here are some very interesting snippets from that article:

U.S. District Judge Ewing Werlein told Bayley he had never sentenced such a defendant with such a sterling reputation.... Werlein said he found the loss caused by Bayly's crimes to be $1.4 million. [N.B. This judicial loss determination is much less than the jury's loss determination in November].

During this morning's hearing, Werlein said Bayly deserved a less harsh sentence than the 4 to 5 years in prison sentencing guidelines would suggest.  The judge said many letters submitted to the court in support of Bayly convinced him of Bayly's good character and reputation. He also said lighter sentences can deter white collar defendants more than other criminals.

In sentencing Bayly, Werlein said he considered the sentences the government has given in plea deals with other Enron defendants. The judge also characterized the barge fraud as relatively benign in the big Enron picture.

ANOTHER UPDATE:  I have also posted, in a separate entry, More news on the Enron Nigerian Barge sentencing.


A few weeks ago, I queried in this post whether we are seeing a pattern of leniency in white collar cases post-Booker.  Professor Weinstein in the comments and others suggested that such a pattern (if it exists) might reflect the fact that, under the federal guidelines, "sentences, keyed to illusory loss numbers, had grown too harsh."

Today sentencing is scheduled for the defendants in the Enron Nigerian barge case (which I discussed at length pre-Booker because the district judge had convened a sentencing jury, details here and here).   This AP story provides background on the sentencing and notes that the PSRs in the case have recommended prison terms of 14 years for one defendant and 33 years for another. 

Interestingly, as detailed in this Wall Street Journal article, the Chamber of Commerce has filed an amicus brief in this case to challenge the way losses are calculated under the guidelines.  Here are a few excerpts from the WSJ article:

The Chamber's brief is an example, observers say, of a feeling within the business community that the government's crackdown on corporate behavior may have gone too far in the wake of the scandals at Enron and other big companies.  With the passage of time, "perhaps the business community feels the climate is a bit better for them to push back" against some of those initiatives, says Robert Litt, a former senior Justice Department official and now a partner at the Washington law firm Arnold & Porter....

In the Nigerian barge case, the Chamber is attacking the Justice Department's method for calculating the financial damage of the fraud.... Under federal sentencing guidelines, which have long been used to determine prison sentences, an important factor in a fraud case is the size of the financial loss that investors suffered as a result of the deceit.  A prison sentence can be altered by years, depending on the results of that calculation.

In the barge case, the math is trickier because questions about the transaction didn't surface publicly until after Enron had collapsed into bankruptcy court in December 2001 and its stock price had fallen to near zero.  The government argues that the bogus profits produced by the 1999 barge transaction artificially inflated Enron's stock price at the time by at least $43.8 million and that this amount should be considered the loss to investors.  In their court filings, the defendants argue that the calculated loss to Enron shareholders should be zero, based partly on the fact that the alleged barge fraud wasn't revealed until after the company's stock price had already crashed.

The Chamber of Commerce's brief supporting the defendants' position argues that the "artificial inflation" of a stock price shouldn't be used to determine loss. A "loss" comes only when disclosure of the alleged fraud causes a drop in the price of the company's stock, the brief says -- adding that the government embraced this definition in a civil securities case that was decided this week by the Supreme Court.  In that opinion, the High Court agreed that investors need to show a link between the alleged fraud and a decline in the company's stock price to proceed with civil suits.

April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack

What's going on at DOJ?

I wondered in this post about when and how we will hear from the Justice Department concerning the Booker fix provisions of H.R. 1528 (basics here, commentary here and here and here).  But now that I see this news that Deputy US Attorney General James Comey, the No. 2 person at the Department, has resigned, I am wondering more broadly about what is going on at DOJ.

Orin Kerr notes here that Comey "was highly respected among the career lawyers at DOJ" and calls his departure "a loss for the Department."  And Comey's resignation comes on the heels of the recent transition of the head of DOJ's Criminal Division (from Chris Wray to Alice Fisher, as detailed here). 

I am inclined to joke that all these developments are more fall-out from Blakely and Booker, though I am sure federal sentencing is only a small part of these stories.  Nevertheless, it raises questions about who is developing DOJ sentencing policies at a time when a lot of strategic choices need to be made by the Department.

April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3) | TrackBack

April 20, 2005

The Tennessee waltz regains its footing by grasping a pikestaff

As detailed here, last Friday the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme.  However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely.

Today I received from David Raybin, who has been integrally involved in many Tennessee Blakely developments, the following e-mail about Gomez and subsequent developments:

The Tennessee Waltz Regains its Footing by Grasping a Pikestaff

Until last week everyone assumed the Tennessee presumptive sentencing scheme violated Blakely, so much so that the governor appointed a commission which recommended a Booker-like advisory sentence fix.  Even the Attorney General agreed that the current law was flawed.  To the astonishment of all, the Tennessee Supreme Court upheld the constitutionality of the Tennessee sentencing guidelines in State v. Gomez. The majority of the Supreme Court held that, notwithstanding a mandatory, presumptive sentence the discretionary enhancement factors somehow made the statute "advisory" and thus allegedly constitutional.  To his credit the Attorney General filed an immediate petition to rehear saying "it is as plain as a pikestaff that a Tennessee judge has no authority to impose a sentence above the presumptive minimum -- the sentence authorized by the jury verdict alone -- unless an enhancement factor is found." The remainder of the petition [which can be downloaded below] attempts to convince the Court to reconsider the Sixth Amendment issue on now-familiar Blakely grounds.

I have been in contact with the defense attorneys who are also filing petitions to rehear but are adding arguments about the "plain error" issue because the Sixth Amendment issue was not raised at trial which occurred well before Blakely was decided.  I am drafting an Amicus petition for on behalf of the defense bar on both Sixth Amendment and "plain error" issues.

The jurisprudence of this affair is astounding; everyone is scratching their heads as to how the Tennessee Supreme Court could have missed the mark by so much given that it was the virtually unanimous view of the Bench and Bar that our statute was clearly unconstitutional.  Some lawyers scoffed that this ruling was an embarrassment the likes of which Tennessee had not seen since the Scopes monkey trial spectacle.  I pointed out to these wags that the Tennessee Supreme Court had saved the day in Scopes' case by holding that the Tennessee constitution provided that only a jury can impose a fine of more than $50. Since the judge imposed the fine (of $100) the conviction was found to be void, Scopes was free, his case was never retried, and the honor of our State restored. 

Gomez represents another sentencing question concerning the proper role of the jury and the judge.  The petitions to rehear will give the Tennessee Supreme Court the opportunity to "get it right" this time.  I am convinced they will reverse themselves given that the Attorney General stepped up again to point out the error of their ways which is as "plain as a pikestaff." A companion political issue concerns the still-pending legislative fix.  The jury is still out on that one given that the Tennessee Supreme Court said the Tennessee law is not broken.  The dance continues.  David Raybin

Download gomez_tenn_states_petition_to_rehear.pdf

UPDATE: Michael Ausbrook over at INCourts has this terrific post which develops a number of the story-lines which surround Gomez and Blakely developments in other states.  Michael's post rightly lauds the Tennessee AG for its willingness to concede Blakely's applicability Tennessee's sentencing system, and it also spotlights the loose language from Justice Stevens' opinion for the Court in Booker that is sowing confusion about Blakely's reach.

April 20, 2005 in Blakely in the States | Permalink | Comments (1) | TrackBack

When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?

It is now more than a full week since the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here) were the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security (coverage is linked here).  I am wondering when and how we will hear from the US Sentencing Commission concerning this bill, as well as when and how we will hear from DOJ concerning the Booker fix provisions.

Given that H.R. 1528 included a number of mandatory minimum sentencing provisions even before the last-minute addition of the Booker fix provisions (Section 12), I was hoping that the USSC would vocally advocate against the bill on the basis of its long-standing opposition to mandatory sentencing provisions (see, e.g., this 1991 USSC report on the failures and harms of mandatories).  Especially once the imbalanced Booker fix surfaced in H.R. 1528, which runs directly contrary to all the "go slow" advice the USSC received in its post-Booker hearings (highlights linked here), I was hoping the USSC would be quick to spotlight problems with the bill.

Of course, I understand it is hard for an official agency to weigh in on proposed legislation as fast as Frank Bowman or Jim Felman or a group of academics have.  Still, the silence from the USSC will become deafening before too long.  The word is that H.R. 1528 was not marked up in the House today, so the bill is not flying through the legislative process.  Nevertheless, the dynamics which surrounded the development and passage of the Feeney Amendment should leave little doubt that time is always of the essence in these matters.

Relatedly, I remain curious about the views of the Justice Department concerning the Booker fix provisions of H.R. 1528.  As detailed in this post, DOJ has generally endorsed the drug sentencing provisions of the bill, although it has expressed concerns about some of its harshest terms.  But the Booker fix proposal is a much different animal.  My instinct is that many line prosecutors would be troubled by the possible impact on plea negotiations that could flow from eliminating nearly all departure grounds (other than for assistance or fast-track), which is what the Booker fix provisions of H.R. 1528 now essentially proposes. 

In addition to concerns that line prosecutors might have, I also think folks in Main Justice should be concerned about the questionable constitutionality of the Booker fix provisions of H.R. 1528.  Because it is so unbalanced, I doubt DOJ would want the terms of H.R. 1528 to become the first test case for the vitality of Harris or the limits of Booker.  Moreover, I assume DOJ is still overwhelmed with post-Booker litigation burdens, and new legislation of this sort would only multiply the number of issues to litigate.  Finally, the extreme imbalance of H.R. 1528 suggests this is a moment for DOJ to really stand up and act like a Department of Justice and not just like a Department of Prosecutors.

April 20, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

Two more of interest from the Seventh Circuit

I noted in this post late last night two interesting sentencing opinions issued by the Seventh Circuit on Tuesday. Today we get two more from that court which seem worth noting:

April 20, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Still more bedtime sentencing reading

In prior posts here and here and here, I noted more than two dozen recent sentencing articles worthy of a place on the professional reading list (which, in my world, grows next to my nightstand).  In case you are caught up (hah!), here are a few more intriguing sentencing pieces now appearing on SSRN:

In addition, I am very proud to report that the Spring 2005 issue of the Ohio State Journal of Criminal Law was sent to press earlier this month (and on time, like the Fall 2004 issue and all other OSJCL issues, thanks principally to the tireless efforts of my colleague and co-editor Joshua Dressler).

The Spring 2005 OSJCL issue includes a wonderful symposium on "Criminal Responsibility," which was guest edited by R.A. Duff, Professor of Philosophy at the University of Stirling, as well as a number of other interesting pieces.  The following articles, which are linked here in full-text, may be of greatest interest to sentencing gurus:

April 20, 2005 in Booker and Fanfan Commentary, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Interesting Crosby remand from the Second Circuit

With thanks to this comment for the tip, I see that the Second Circuit's remand yesterday in US v. Godding, No. 04-3643 (2d Cir. Apr. 19, 2005) (available here) perhaps merits additional attention.  (Appellate Law & Practice noted this case yesterday here as did the Second Circuit Blog here, and today this article in the Hartford Courant provides a lot more background on the case).

What makes Godding notable is the Second Circuit's stated concerns about the justifications given by District Judge Dorsey for the below-guidelines sentence he imposed pre-Booker:

We are most troubled by the district court's mention of the bank's failure to detect and prevent the embezzlement. While the court expressly stated that it did not rely on this factor in sentencing, we note that consideration of such a factor and the conclusion that it, and not the defendant's volitional acts, rendered the sum embezzled in this case more significant than it otherwise would have been, would lead us to question the reasonableness of a non-guidelines sentence. Godding embezzled a significant sum and we do not think a district court could properly discount Godding's responsibility for the amount by referring to the bank's failure to check the crime. Furthermore, we are more broadly concerned that the brevity of the term of imprisonment imposed by this sentence does not reflect the magnitude of the theft of nearly $366,000 over a five-year period.

Section 3553(a) requires a court to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A) (2004). On any appeal taken following this remand, the sentence imposed by the district court below, or any new sentence imposed, will be reviewed, in accordance with United States v. Booker, for "reasonableness."

April 20, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

On third thought from the Third Circuit

Last week I noted here that the Third Circuit in its (unpublished) King decision dropped a footnote with (intriguing and questionable) Booker dicta indicating that post-Booker enhancements "must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable doubt."  I was further intrigued, as detailed here, when the Third Circuit subsequently amended that footnote, but merely to fix a typo.

Giving this matter now a third thought, it seems that the Third Circuit is no longer comfortable with the substance of the footnote in King.  As indicated by this order, the Third Circuit has "hereby withdrawn and vacated" its opinion in King.  With King thus dethroned, it appears that the dicta in this footnote no longer reigns.

April 20, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

More examples of tough post-Booker sentences

News accounts of recent federal sentencings provides additional evidence that, as suggested here and here and here, there is little reason to fear that federal judges are consistently using their new discretion to "go soft" on federal offenders:

April 20, 2005 in Booker in district courts | Permalink | Comments (7) | TrackBack

Updating the Booker summary

I noticed today that Frances Pratt has updated yet again, with decisions through April 17, her terrific extended outline of post-Booker decisions, which is available here and now runs 87 pages.  In the same spirit, the opinions from 11th Circuit by Judges Carnes, Tjoflat and Barkett today in the Rodriguez denial of rehearing en banc (basics here) indirectly serves as a review of a number of post-Booker issues and developing doctrines.  It is also a fun (though lengthy) read.

April 20, 2005 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Intriguing sentencing items in the blogsphere

A tour around the blogsphere leads me to a number of interesting items on a range of sentencing and corrections issues:

April 20, 2005 | Permalink | Comments (0) | TrackBack

Two for Tuesday from the 7th Circuit

Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:

April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

April 19, 2005

Circuit insanity and Booker

I see that the fine folks over at Appellate Law & Practice have this post headlined "Insanity and Booker" which is focused on a First Circuit case that involves an insanity issue and a Booker remand.  (And Now the PRACDL Blog has this interesting post on this interesting First Circuit case.)  But the "Insanity and Booker" title seems like a fitting descrition for all the circuit Booker action these days. 

For example, as Appellate Law & Practice also notes here, today the Eleventh Circuit has given us 92 more pages on Booker plain error: Judge Carnes defends the Circuit's stingy plain error approach as part of the Court's denial of a rehearing en banc in Rodriguez (basics here); Judges Tjoflat and Barkett dissent from the denial of rehearing en banc.  The full opinions in this new Rodriguez development are linked here (and don't forget to re-load your paper tray before hitting the print button).

Meanwhile, to complete our tour of the day's circuit Booker action, I see that Appellate Law & Practice also has posts on other First Circuit Booker cases here and here, and a Second Circuit case here.  Also, I see more than a few notable Booker opinions from more than a few other circuits today (see, e.g., the work today from the Sixth Circuit here or from the Seventh Circuit here), which I hope time and energy might allow me to discuss later tonight.

UPDATEI just noticed that Judge Tjoflat quotes at length from my blog post here on pages 51-52 of the latest Rodriguez opinion.  I am inclined to say that this proves that some sanity prevails on the circuit courts.  But, of course, Judge Tjoflat is writing in dissent and, as noted here, he has a history of being kind to the blog.  Also, a quick read of Judge Carnes' opinion, which has many rhetorical flourishes, suggests that he strongly believes that most of the other circuits have gone a bit insane in their approaches to Booker plain error.

April 19, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

A punchy, though puzzling, perspective on parsimony

In the hours after Booker was handed down, I discussed the power of parsimony in highlighting that the very first sentence of 3553(a) instructs that federal judges "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection."  This statutory mandate is often called the "parsimony provision," and Judge Cassell suggested in his original Wilson opinion (basics here, commentary here and here) that this statutory directive arguably "requires a court to impose a sentence at the low end of any applicable Guidelines range." Wilson Slip op. at p. 23.

Judge Kopf's (entertaining) Tabor opinion yesterday on crack sentencing (discussed here) suggests that the parsimony provision, which was barely ever discussed pre-Booker, is now getting plenty of attention.  But, as indicated in footnote 14 in Tabor, Judge Kopf apparently is not too pleased with this development:

If a criminal defense lawyer invokes the "not greater than necessary" chant one more time as the raison d'etre for a sentence below the Guidelines, I am likely to throw up.  What the hell does "not greater than necessary" really mean?  Please do not refer me to 18 U.S.C. § 3553(a)(2) as if it provided a concrete answer for individual cases.  Centering a sentence on the words "not greater than necessary" is the judicial equivalent of reading tarot cards — neither the legitimacy of the sentence nor the truth of the reading can be proved or disproved by rational means.  More to the point, why should anyone trust one unelected judge like me to provide ad hoc definitions of this virtually meaningless and circular abstraction unencumbered by the lodestar of the Guidelines?  Booker tells me to use discretion. It does not tell me to pick sentences out of the air by fixating on the phrase "not greater than necessary" as an excuse to sentence below the Guidelines.

Though this discussion of the parsimony provision is a wonderful rhetorical flash of legal realism, I must note that these comments by Judge Kopf are a bit jarring within an opinion that otherwise heavily stresses the importance of judges following Congress's sentencing instructions.  After all, the parsimony provision is a statutory mandate enacted by Congress as part of the Sentencing Reform Act two decades ago, and it has never been altered.  (In contrast, neither the crack guidelines nor most other specific provisions of the "lodestar of the Guidelines" have ever been formally enacted by Congress). 

Though Judge Kopf may struggle with Congress's statutory instruction in 3553(a) that judges "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment]," it is the obligation of all judges at sentencing to try to give effect to this mandate unless and until Congress changes the terms of 3553(a).  Moreover, when the US Sentencing Commission and others seek to judge the status of post-Booker sentencing, they should be sure to keep in mind that this statutory obligation now controls federal sentencing decision-making in individual cases.

April 19, 2005 in Booker and Fanfan Commentary, Booker in district courts, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

A capital term for SCOTUS

This AP report about today Supreme Court argument in Bradshaw v. Stumpf (background here from SCOTUSblog) confirms my impression that the Justices were interested in this case primarily because it involves a death sentence:

The justices questioned both lawyers on whether it would have made a difference in Stumpf being sentenced to die if the Ohio court had known that he wasn't the shooter.  "The concern that I have is not with the guilty or innocence plea here, but it's with the sentencing," Justice David Souter said.  Justice Stephen G. Breyer said, "It could be that people don't want to impose capital punishment unless they know that someone killed a person.  So it could have made a difference."

The article also notes that Stumpf is just "one of nine death penalty cases that the Supreme Court plans to hear this spring."  Considering also that a number of capital cases occupied SCOTUS in the fall (while the Court's overall docket continues to shrink), I find it remarkable and noteworthy how much time and energy the Supreme Court is spending on death penalty litigation these days.  (Dare I call these developments evidence of a "legal culture of death" at the Supreme Court?)

I have noted before in this post my amazement with how much Supreme Court time (not to mention, of course, lower court time) gets consumed by the death penalty.  And in this post about the Deck case now before the Court, I noted how much work the Supreme Court created for itself once it started seriously regulating capital sentencing procedures three decades ago following its landmark rulings in Furman and Gregg. And since, as I noted here, there are some jurisprudential parallels between the developing Apprendi/Blakely line of non-capital sentencing regulations and the Furman/Gregg line of capital sentencing regulations, I cannot help but wonder if we might someday expect to see numerous non-capital sentencing cases before the Supreme Court each term.  Gosh know, as this blog documents, there are no shortage of post-Blakely and post-Booker legal questions that need to be answered.

Below are a few prior posts that have discussed the SCOTUS docket and related issues:

April 19, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Final version of academic letter assailing brewing Booker fix

Professor Michael O'Hear late yesterday finalized the thoughtful letter he developed criticizing the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and linked here).  A total of 60 law teachers signed on within the span of about 24 hours.  The final version of this letter, reflecting all the signors, is available for downloading below.

Download final_prof_letter_re_problems_with_booker_fix.doc

April 19, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (1) | TrackBack

Today's Supreme Court action

Though the Supreme Court did not decide today any of the three criminal cases that Mike at Crime & Federalism eagerly awaits, it is hearing argument on two criminal cases that have potential sentencing implications.  SCOTUSblog, which as always has the best coverage of SCOTUS developments, provides background on these cases here.

April 19, 2005 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Washington state's Blakely fix

Last Friday, the Governor of Washington signed the state's Blakely fix bill, which can be read here. Here is how this legislation was describe to me in an e-mail:

The law, which takes effect immediately, Blakely-izes the Washington state guidelines.  It lengthens the former list of aggravators to include all "common law," unenumerated aggravators that had been judicially created and approved over the years, but then says that the list is now exclusive.  Most aggravators, if contested, are to be proven during the trial.  The trial judge, however, may hold a separate sentencing hearing with respect to four named aggravators if certain conditions are met.

With this legislation, Washington joins a growing number of states willing to give effect to Blakely by providing for jury determinations of aggravating factors.  And there are a number of interesting facets to this legislation.  For example, Section 5 provides for the state sentencing commission to do a comprehensive review of the state sentencing system and "submit its findings and proposed legislation to the legislature no later than December 1, 2005." 

Also, in Section 3, this Blakely fix legislation provides through subsections (2) (b), (c) & (d) for judges to be able to increase sentences without jury findings based on a range of aggravating factors relating to criminal history.  However, the constitutionality of this procedure depends on a broad reading of the Almendarez-Torres "prior conviction exception."  And, just the day before this fix was enacted, the Washington state supreme court in Hughes (basics here, commentary here) seemed to give the Almendarez-Torres "prior conviction exception a narrow reading.  Thus, the Washington state's Blakely fix may already need fixing.

April 19, 2005 in Blakely in the States | Permalink | Comments (4) | TrackBack

Sentencing in the morning papers

A quick tour of newspaper stories this morning reveals a set of interesting sentencing articles:

April 19, 2005 in Booker and Fanfan Commentary, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

April 18, 2005

Another (and different) view on the crack guidelines

One of the many interesting post-Booker developments in the district court has been the discussion of crack sentencing and the purposes of punishment in opinions from Judge Sifton in Simon (discussed here) and Judge Adelman in Smith (discussed here).  Today brings a contrasting perspective on these issues from Judge Richard Kopf in US v. Tabor, No. 4:01CR3215 (D. Neb. Apr. 18, 2005), which can be downloaded below. 

Judge Kopf a few months ago explained in Wanning (discussed here), through a sharp (and often comical) opinion, why he gives the guidelines "substantial weight even though the are now advisory."  In another sharp (and often comical) opinion in Tabor, Judge Kopf concludes "that the crack Guidelines, like all other Guidelines, should be given heavy weight after Booker."  Tabor is a must-read for a number of reasons, although prosecutors are likely to be more pleased than defense counsel with the outcome.  Because a brief summary cannot do justice to all the post-Booker sentencing aspects of Tabor, I will content myself to quote a footnote from Tabor which weighs in on a related raging legal debate:

Given the recent attacks on the federal judiciary by a few members of Congress, I sometimes wonder why I ought to care about differentiating between the proper role of judges and legislators. When I get in that pessimistic frame of mind, the long view of history persuades me that "this too shall pass" and that the work is worth the toil.  In the face of such childish complaining, there is also a certain self-satisfaction in behaving as an adult.

Download tabor_crack_opinion_from_judge_kopf.pdf

April 18, 2005 in Booker in district courts, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1) | TrackBack

Circuits back to Booker business

A quick afternoon tour of the federal circuit websites reveals that every circuit that has posted opinions today has at least one ruling addressing Booker or a related sentencing issue.  As detailed in this post, I have given up trying to follow all the circuit Booker action; I will only note rulings that, for whatever reason, catch my eye or that readers suggest are especially noteworthy or interesting.  So far, these circuit court rulings have caught my attention today:

From the Fourth Circuit, the severity of the sentence seems noteworthy in US v. Robinson, No. 04-4388 (4th Cir. Apr. 18, 2005) (available here).  Robinson, a young man with an IQ measured at 70 who was abused as a young child, was convicted at trial of a string of armed robberies committed when he was 16 years old.  The district court sentenced Robinson to 32 years' imprisonment, but the Fourth Circuit was forced to remand for resentencing because it determined that his many convictions under § 924(c) required statutory minimum sentences adding up to 182 years.  The Fourth Circuit commented: "While this result may seem manifestly unjust given Robinson's age and well-documented intellectual limitations, it is the result mandated by Congress."  I wonder, especially in light of Roper and Atkins and points I made in this post, if Robinson might on remand challenge his sentence on Eighth Amendment grounds.  Amicus brief anyone?

From the Ninth Circuit, a post-Booker sentence affirmance seems noteworthy in US v. Cortez-Arias, No. 04-10184 (9th Cir. Apr. 18, 2005) (available here), principally because Booker is not really addressed.  In Cortez-Arias, the Ninth Circuit affirms a 16-level sentencing enhancement in an illegal re-entry case based on its conclusion that a prior conviction qualified as a "crime of violence."  In Cortez-Arias, the Ninth Circuit (which is still debating plain error en banc) never examines whether the district court would have, in its discretion, imposed the enhancement under advisory guidelines and it simply asserts in a footnote: "Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court's recent holding in United States v. Booker, 25 S. Ct. 738 (2005). See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n.8 (9th Cir. 2005)."  Besides the fact Booker is mis-cited, I checked Moreno-Hernandez to discover it remanded for "advisory" reconsideration; I am not sure why the same course should not have been followed in Cortez-Arias.  (I suppose it is possible counsel did not ever raise Booker on appeal, but that seems unlikely.)

From the Eleventh Circuit, a post-Booker reversal seems noteworthy in US v. Smith, No. 02-13211 (11th Cir. Apr. 18, 2005) (available here).  In Smith, the district court found that the defendant's non-Hodgkin's lymphoma, which weakened his immune system, justified a 20-level downward departure so that the defendant could be sentenced to time served.  The Eleventh Circuit noted that defendant "has continued to work as a Dade County water and sewer technician ..., and is thereby exposed to countless bacteria on a daily basis [and also] sponsors musical promotional parties attended by hundreds of people, again subjecting himself to the risk of exposure to bacteria, virus and fungus infections."  It thus held, without any express discussion of the 3553(a) factors, that "[r]egardless of whether, in a pre-Booker world, the sentencing guidelines are interpreted as mandatory, or now, in a post-Booker world, they are considered advisory, it was unreasonable and/or clearly erroneous for the district court to depart downwardly as far as it did in this case."

April 18, 2005 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

Update on academic letter concerning H.R. 1528

As detailed in this post, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, a bill moving through the House of Representatives (basics here, commentary here and here and linked here).  Already 50 law teachers have agreed to sign their name to the letter, and Michael plans to send the letter off at the close of business today.  If you are interested in adding your name to the letter, which can be read here, please contact Michael via e-mail at this link no later than 4:30pm this afternoon.

April 18, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (2) | TrackBack

The legal attack on lethal injection

With thank to How Appealing for the tip, I see that USA Today has this interesting article discussing the "the latest legal challenge to lethal injection, the nation's most used but increasingly controversial form of execution."  The piece discusses a constitutional challenge to lethal injection unfolding in a Kentucky case, which comes on the heels of new medical evidence that some inmates might experience awareness and suffering during their execution (discussed here at DPIC's website).

I was intrigued to see the article's report that Fordham Professor Deborah Denno will be testifying on behalf of the prisoners in this Kentucky litigation.  The USA Today article also makes reference to a 2002 article she wrote on lethal injection as part of this symposium on capital punishment that I helped organize for the Ohio State Law Journal.  That article, which can be accessed here, is the most comprehensive examination of lethal injection that I have seen in the law review literature (counting charts and appendices, it runs 200(!) journal pages).  The prisoners in Kentucky have thus ensured that the court is getting truly expert information about this method of execution.

Additional information about methods of execution can be found at this page from the Death Penalty Information Center.  The history of execution methods is a fascinating story, as detailed in discussions here and here about the electric chair, and this discussion of older execution techniques.

April 18, 2005 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

The Booker GVRs are back

After a two week break, the Supreme Court is back in business today.  And, as has become its custom over the last three months, Mondays at the High Court now start with an order list that includes a bunch of Booker-inspired GVRs.  This morning I count nearly 30 such GVRs, and now I am thinking we might have over 1000 such orders before this term is finished.  (Previous GVRs can be tracked down through this post.)

Also, as reported here by SCOTUSblog, the Supreme Court today "refused to reopen the 1998 decision in Almendarez-Torres [as it] denied a motion to file a petition for rehearing" in that case.  (That petition was previously discussed here.)  Thus, it appears some other case will be needed to satisy Justice Thomas' desire for the to "consider Almendarez-Torres' continuing viability."

April 18, 2005 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Big sentencing week at OSU and elsewhere

As documented by my weekly wrap-ups (recent examples here and here), every week now seems big in the sentencing world.  And this coming week has a number of events at Ohio State and possible developments elsewhere that has me geared up for more major doings:

April 18, 2005 in Booker and Fanfan Commentary, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

April 17, 2005

Academic input on a not-so-academic Booker fix proposal

Last week in this post about the Booker fix provisions of H.R. 1528 (basics here, commentary here and here and linked here), and I urged persons concerned about the congressional response to Booker to help ensure that rhetoric does not eclipse reality as the legislative process unfolds.  Taking up my suggestion, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, which can be downloaded below.  (Some other criticisms of the bill, which merits a lot of criticism, are discussed and linked here.)

Michael's letter is written on behalf of "law teachers, most of whom specialize in criminal law and procedure," and he would like to add the name of professors who "agree that the Booker fix bill represents bad policy — or that it should, at least, be removed from the legislative fast track and subject to closer scrutiny."  Professors (including, in my view, adjuncts) who are willing to have their names added to the letter should contact Michael via e-mail with this link (and be sure to include your name, title, and institution).

Download prof_letter_booker_fix_3.doc

April 17, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

More interesting district court Booker action

After a few weeks of more Booker circuit action than I can handle (evidenced here), I am pleased to see that the district courts are again contributing some interesting opinions in the post-Booker world.  As detailed here, Judge Gertner at the end of last week expounded on acquitted conduct post-Booker with a potent decision in US v. Pimental, No. 99-10310-NG (D. Mass. Apr. 15, 2005).  And now I see on-line a number of other interesting district court opinions from last week:

April 17, 2005 in Booker in district courts | Permalink | Comments (0) | TrackBack