Sentencing Law and Policy

Songs in the key of 3553

Thanks to a thoughtful soul (and reader), I am now a member of iPod nation.  And after spending some time playing with my music library, I recalled that many folks (present company included) have taken to describing Booker in song.  So, for those musically inclined, I offer the following Booker playlist (which readers are, of course, encouraged to supplement):

• The Who, Won't Get Fooled Again (song and lyrics cited in this post)
• Talking Heads, Once in a Lifetime (lyric cited in this post and linked article)
• Bob Dylan, Tangled Up in Blue (lyric cited in this post and linked article)
• REM, It's The End Of The World As We Know It (lyric in this article)
• Bob Dylan, All Along the Watchtower (lyric in this article)
• Lou Reed, Talk a Walk on the Wild Side (brilliant Blakely parody here)
• Dan Hicks, How Can I Miss You If You Won't Go Away (song referenced by US Attorney Robert McCampbell as detailed in this post)

More on departures and variances: not quite as easy as 123

In this recent post, I spotlighted the importance of a post-Booker protocol in which judges first (1) calculate an applicable guideline range, then (2) make traditional departure determinations, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on 3553(a).  I also expressed concern that it would be dangerously easy for courts to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely.  (TalkLeft has an astute recent post, Booker, FanFan 1-2-3, commenting on these matters.)

A district court Booker decision that just came on-line, US v. Mullins, 2005 WL 372209 (WD Va., Feb. 16, 2005) (available here), confirms that some post-Booker decisions may not be as easy as 123.  In Mullins, Chief US District Judge James Jones finds it "reasonable to sentence the defendant below the advisory sentencing guideline range" after his guilty plea to two firearm charges, but does so after suggesting, but not conclusively ruling on, the possibility of a departure:

The ground for the requested downward departure here is unmentioned in the Sentencing Guidelines, and thus under pre-Booker procedure, I would determine whether the fact that the conduct used to compute the guideline range is no longer criminal is sufficient to justify a departure.  Whether consideration of guideline authorized departures in the post-Booker world is necessary is a question that remains to be answered. I need not decide that issue, however, since I find that in any event, a variance below the applicable guideline range is called for in this case.

There has been yet no authoritative formulation following Booker as to the weight to be given to the formerly mandatory sentencing guidelines.  Regardless of the precise weight to be given to the Sentencing Guidelines, however, I find that evaluation of the statutory sentencing goals justifies a sentence below that of the guidelines.  The applicable sentencing statute left untouched by Booker requires a sentencing court to impose a sentence not greater than necessary to comply with certain listed sentencing purposes, including "afford[ing] adequate deterrence to criminal conduct." 18 U.S.C.A. § 3553(a)(2)(B).  In the present case, neither the defendant nor others can be deterred by a sentence based on the guideline range for possession of a semiautomatic assault rifle, since that conduct is no longer criminal.  Instead, the more apt guidelines range should be based on the conduct that is still criminal — selling a firearm without the proper documentation. That offense has a base offense level of 12. USSG § 2K2.1(a)(7). Adding the stipulated increases and subtracting the reduction for acceptance of responsibility produces a total offense level of 21, which has a sentencing range of 37 to 46 months for Criminal History Category I.

Taking into account the guidelines as well as the sentencing goals of § 3553(a), I find that a reasonable sentence in this case is 40 months imprisonment.  This sentence gives recognition to the guideline range while also applying an appropriate reduction because of the removal of criminality of the offense used to calculate that range.

Because of the understandable decision not to rule expressly on the departure issue, I think the Sentencing Commission will have to code the Mullins case as a "variance."  However, both because a departure likely would have been appropriate and because Judge Jones linked the degree of his variance to the guidelines, this case hardly seems to be a "non-Guidelines" sentence.  Mullins thus spotlights how hard it will be for the USSC to code and present effectively post-Booker data, even though as noted here everyone consider such data work to be among the USSC's most critical tasks now.

A federal capital trifecta!

A thoughtful reader was kind enough to send me a copy of a (long) decision addressing pre-trial issues in a federal capital case which was filed yesterday by Chief US District Judge Mark Bennett (ND Iowa) in US v. Johnson, No. CR 01-3046-MWB (N.D. Iowa Feb. 18, 2005).  The first 95 pages of the opinion, according to my source, "has the virtue of being a cure for insomnia," but pages 96-118 merits everyone's attention because here Judge Bennett provides perhaps the first ever comprehensive explanation and justification for "trifurcation" in a federal death penalty case.  You can download the whole opinion below.

Judge Bennett's analysis in Johnson is fascinating, and earns extra points in my book for its many cites to the copious law review literature on capital sentencing procedures.  It also reaches this wonderfully nuanced conclusion:

[N]otwithstanding that § 848 [the federal capital sentencing statute] expressly provides for a "bifurcated" proceeding, and there is no constitutional requirement for proceedings in a different form, the court concludes that § 848(j) permits, and the circumstances in this case require, that the proceedings in the case be "trifurcated," as described above.

Given the remarkable efforts that the government has recently gone through to get the high-profile capital case in Houston tried exactly as they wish (some background here), it will be interesting to see if there might be an immediate appeal from this trifurcation order.

Download johnson_trifurcate_opinion.pdf

Some smaller circuit Booker dispositions

As I predicted here, we did get some late Friday Booker action from the circuit courts.  But none of the Booker rulings coming on-line from last night (or the previous day) seem all that consequential, and thus I will do just a very quick summary of rulings from the Second, Third, Ninth and Tenth Circuits:

From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).

From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."

From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."

From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.

If I have missed some nuances in these cases or other recent circuit disposition, readers are highly encouraged to use the comments to fill out the Booker circuit story.

More on victims at sentencing

In this recent post, I talked through some of the questions I had about the role of crime victims at sentencing after this topic came up in a number of interesting ways during this week's US Sentencing Commission hearing (overall coverage linked here, specific highlights here and here).  Driving the topic now at the federal level, as both Judge Cassell and victim advocate Collene (Thompson) Campbell highlighted for the USSC, is Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771).

Proving he is the hardest working man in law business, Judge Cassell followed up the Commission buzz and my own queries with a terrifically insightful letter to the USSC covering "Victim Access to Pre-Sentence Reports" and "Defining the Victim."  Judge Cassell thoughtfully cc:d me on the letter and has allowed me to post it here:

Download cassell_victim_letter.rtf

And, excitingly, this developing dialogue prompted Mike Connelly of the Wisconsin Sentencing Commission to send me some information from his state about experiences with victims at sentencing.  A brief but thoughtful document entitled "Victim Information in Wisconsin Courts, 2003 – 2004" is also available here for download.  In addition, Mike shared his insight that some victims' organizations have been concerned at the lack of implementation of victims' rights provisions and have been looking at means to consolidate and improve data collection from local jurisdictions to state and national levels.   (I like hearing I am not the only one who beats the drum for sentencing data.)

Download wisconsin_victim_data.doc

Giddy with anticipation...

I am back in (chilly) Ohio, and was pleased to discover upon my return that it has been a relatively calm Booker day, at least so far.  But recalling that the last two Fridays brought a lot of late day Booker circuit action (examples from last week are here and here, from the prior week here and here), I suppose I should be prepared to get on-line late tonight to find the day has not in fact been all that quiet.

While getting prepared, I am already a bit giddy with anticipation for next week's possible jurisprudential fireworks.  On the Booker front, with a long weekend to polish opinions, I suspect we might see next week some more notable lower federal court rulings.  And, adding to the excitement, the SCOTUS folks are back in business with arguments scheduled next week, the expected announcement of some cert. grants, and the possibility of some more opinions.  (Of course, I am watching for decisions in Roper v. Simmons, the juvenile death penalty case, or Shepard v. US, the criminal history case.)

Beyond court action, this calender here details a number of interesting Booker events taking place next week.  And today I can add to the list a Washington Legal Foundation Panel Discussion entitled "The Future of Federal Sentencing: 'Reasonable' Judicial Discretion or Congressional Intervention?" taking place on Thursday, Feb. 24 at 9am in Washington DC.  More details about the event can be found here, and I am already looking forward to watching the webcast.

Heading home after a great DC week

Providing the flip-side of this post summarizing earlier developments, as I get ready to head home after an exciting DC week, I have set out below links to recent developments and commentary.  I hope to be back on-line by late Friday afternoon, though the following provides lots of reading in the meantime:

USSC HEARING HIGHLIGHTS AND COMMENTARY

• Highlights from the USSC hearing transcripts
• Departures, variances and defense advocacy
• Topical highlights from Day 2 of the USSC hearings
• The importance of, and another great example of, district court Booker explanations
• The USSC hearings continue...
• Pondering a victim's role in sentencing
• A few highlights from Day 1 of the USSC hearings

BOOKER CIRCUIT COURT RULINGS AND COMMENTARY

• Time to put out an APB for the 5th Circuit?
• Sorting the pipeline cases
• 11th Circuit speaks on retroactivity
• Another impressive Sixth Circuit Booker episode
• Booker developments in the Second Circuit
• In today's great episode of how the Sixth Circuit turns...
• Sorting through the Circuit circus

Highlights from the USSC hearing transcripts

The US Sentencing Commission, to its great credit, has not only the written testimony from its hearing this week linked here, but also now has up transcripts with all the live testimony.  The transcript from Tuesday afternoon is here, from Wednesday morning is here.  (And while I am giving out credit, a wise reader noted that USSC Chair Hinojosa and Judge Sim Lake used the term "vary" in their documentation memo (discussed here) the week after Blakely.  Thus, they deserve credit along with Judge Cassell for coining the term "variance" to describe post-Booker non-guideline sentences.)

The USSC hearing transcripts are very long — a total of nearly 300 pages! — but the Q&A after each panel really provides a rich addition to the written testimony  and also reveals what some of the Commissioners are thinking through.  In addition, there are 13 must-read pages from all the transcripts, appearing at the very end (pp. 137-150 of the second transcript) in the testimony of Robert McCampbell, who is the US Attorney for the Western District of Oklahoma and chairs the AG's Advisory Sub-Committee on Sentencing for DOJ. 

Though McCampbell's written testimony largely tracked the written testimony of Chris Wray for DOJ at the House hearing, McCampbell made a number of distinct (and extraordinarily insightful) points in his oral presentation.  In addition, through the Q&A with the Commissioners, McCampbell shed a lot of light on DOJ's biggest concerns as the post-Booker world unfolds.  This weekend I hope to do some additional commentary, based on this testimony, on what we might soon expect to see from DOJ.  In the meantime, go read those 13 pages, which McCampbell starts with this highlight:

When I read those two [Booker] opinions back to back, I have to say I was reminded of the old country-western song, "How Can I Miss You if You Won't Go Away?"

Time to put out an APB for the 5th Circuit?

Though a few smaller circuits, specifically the First and DC Circuits, have not yet given us any notably Booker rulings, the total Booker silence from the Fifth Circuit seems particularly noteworthy.  We are now more than a full five weeks since Booker was handed down, and every other circuit with a sizeable caseload has issued at least one major and some minor Booker rulings.  (The ever exciting Sixth Circuit already has handed down more than a dozen notable Booker rulings.)

The quietness of the Fifth Circuit is especially interesting given that (1) last summer the Circuit very quickly addressed Blakely's applicability to the federal system and ruled in Pineiro less than three weeks after Blakely that the federal guidelines were not affected, (2) the Circuit disposed of nearly 200 appeals raising Blakely issues in the 6 months between Pineiro and Booker, and (3) the Circuit has a huge appellate and district court sentencing caseload (second only to the Ninth Circuit's); indeed, in Pineiro the Fifth Circuit explained that it had to rule quickly  on Blakely because of the "unremitting press of sentencing appeals."

I have not heard any official word of the Fifth Circuit planning for en banc consideration of Booker issues, but perhaps some form of official or unofficial collective action by the court is slowing it down.  Given the fact the circuit faces on average more about 100 appeals per month, and also given the likelihood that appeals increased after Blakely, there must be an enormous backload of cases piling up while the Fifth Circuit tries to find its post-Booker voice.

Capital notes around the blogsphere

For those seeking a brief Booker break, check out TalkLeft's two notable pieces on the death penalty, with this post on continuing problems in Illinois' death penalty system and this post questioning the guilt of the defendant executed on Thursday in Texas.  And the PRACDL Blog provides here the legal basics of the hotly litigated federal capital trial in a high-profile alien smuggling case in Houston.  Also, the Death Penalty Information Center has at its website a number of interesting new items, including this item about the growing elderly population on death rows.

Sorting the pipeline cases

The Christian Science Monitor has this article discussing a range of Booker fall-out issues, and gives special attention to the challenges courts are facing sorting out all the cases in the appellate pipeline.  A similar well-done article from the National Law Journal is available here at law.com.

Additional news on this front comes from the Third Circuit Blog, which here reports that the Third Circuit "has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less."  The post also reasonably suggests that the Third Circuit will be "using these letters as the primary means of screening cases for remand under Booker."  A thoughtful reader was kind enough to pass along one of these letters, which can be downloaded below.

Download 3d_cir_req_for_letter_on_booker.pdf

I am not a journalist, but I did sort of play one on a panel today

As Howard Bashman noted here, my DC afternoon involved participating on a panel addressing "The Effects of New Technologies on Covering the Court."  Terrifically moderated by Pete Williams, my co-panelists Joan Biskupic, Lincoln Caplan and Dahlia Lithwick had a lot of interesting and thought-provoking comments about how the internet and blogs have impacted the coverage of the Supreme Court and legal issues more generally.  Howard's ears should have been burning, since his role as SCOTUS' "38th law clerk" was mentioned.  The discussion was mostly Booker-free, which was a refreshing change, and the evening was capped by a big dinner at the Supreme Court and a stirring speech by Justice Kennedy.  Heady stuff for a law geek used to just rambling on-line in my pajamas.

11th Circuit speaks on retroactivity

I have been off-line playing the DC tourist most of the day and now I am off to participate in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court (discussed previously here).  But as I dash out I see that from Appellate Law & Practice here that the 11th Circuit has ruled per curiam in Varela v. US, No. 04-11725 (11th Cir. Feb. 17, 2005) (available here) that Blakely and Booker are not retroactively applicable to cases on collateral review.  I hope to comment on this case, and other DC news and notes, later tonight.

UPDATE: The work of the Eleventh Circuit in Varela is both unsurprising and uninspiring.  As have most district courts in the wake of Blakely and Booker, the Varela court simply parrots parts of the Supreme Court's ruling in Schriro concerning Ring's non-retroactivity to declare that Blakely and Booker are not retroactively applicable to cases on collateral review.  Unlike the Seventh Circuit's more thorough and thoughtful effort in McReynolds (details here), the Eleventh Circuit in Varela does not grapple with or even acknowledge that Schriro only concerned judge/jury issues and did not consider the possible impact of key burden of proof issues on retroactivity.

Another impressive Sixth Circuit Booker episode

I joked here that the Sixth Circuit's Booker work has a soap-opera quality, but today's installment of the saga at least suggests the judges in the circuit are all starting to work from basically the same script.  Today's thoughtful opinion comes from Judge Karen Nelson Moore in US v. McDaniel, 03-1940 (6th Cir. Feb. 17, 2005) (available here), and in the end it remands on Booker grounds for resentencing while suggesting some developing harmony over how the circuit is dealing with plain error.

The Sixth Circuit's work in McDaniel, like its work yesterday in Barnett, merits a close read for anyone working through plain error issues.  In addition, the McDaniel opinion has a lot of interesting dicta about the handling of pipeline issues, the application of Blakely/Booker to restitution issues, and a number of other matters.

UPDATE: Appellate Law & Practice picks up the soap opera theme with a great post entitled As the Sixth Circuit Booker World Turns.  This post includes additional commentary on McDaniel as well as a brief discussion of the Sixth Circuit's unpublished disposition in US v. Fusse, No. 02-6112 (6th Cir, Feb. 17, 2005) (available here), which itself briefly deals with plain error on the way to granting a Booker remand.

Departures, variances and defense advocacy

In emphasizing how important it is for district judges to fully explain and document their post-Booker sentencing decisions, as discussed here, many Commissioners and witnesses at the USSC hearings (basics here) expressed the view that judges at sentencing must now (1) calculate an applicable guideline range, and then (2) make traditional departure determinations under the guidelines, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on the 3553(a) factors. 

I think district judges should carefully follow this protocol not only because it is suggested by Booker (and mandated by the Second Circuit in Crosby), but also because only if judges follow this protocol will we get a precise and complete understanding of Booker's impact on federal sentencing practices.  Moreover, this methodology also should help keep some teeth in 5K1.1 substantial assistance departures (which, as noted here, is a big concern for the Justice Department).

And yet, I suspect it is going to be dangerously easy for courts and counsel to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely.  I fear particularly in cases of "discouraged" considerations such as prior good works or family circumstances, judges and counsel will not be inclined to go through the hard doctrinal work of deciding whether a case is sufficiently exceptional to justify a departure and will principally focus on variance arguments based on the 3553(a) factors.

For defense counsel, I think there will be significant strategic issues in decided whether and how to develop departure and variance arguments.  Though it might seem sensible to always first pitch for a departure, and then seek a variance as a fall-back position, counsel might risk losing credibility or placing emphasis on less helpful factors by putting greater focus on a departure claim than a variance claim.  Also, it will be interesting to see, in the development of reasonableness review, whether departures get as much (or possibly more) appellate scrutiny as variances.

While defense counsel contemplate these matters in particular cases, they can can and should draw on collected wisdom of two decades of mitigating claims developed in the guideline system.  Helpfully, attorney Michael Levine has long been assembling this wisdom in a regularly updated mega-resource that, pre-Booker, had been entitled "88 Easy Departures."  Michael was kind enough to send my way his post-Booker update of this document which is now, tellingly, entitled "108 Easy Mitigating Factors."  This documents, which can be downloaded below, provides advise to defense counsel and effectively marshalls in a topic fashion "cases granting, affirming, or suggesting mitigating factors."

Download levine_108_easy_mitigating_factors_feb_1.doc

Booker developments in the Second Circuit

The Second Circuit Blog here is reporting that both the SDNY and EDNY US Attorney's Offices "are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker [except] apparently [in] cases involving plea agreements with appellate waivers."  According to the post, the "Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant."

This is interesting news in light of some dicta in a Second Circuit Booker ruling today in US v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005) (available here).  The holding of Sharpley is relatively straightforward, as it concludes that "because Sharpley was sentenced at the statutory mandatory minimum and the government has not requested resentencing, this is the rare case where use of a mandatory Guidelines scheme is harmless error even under" Booker and Crosby.  And the court in passing ducked the appeal waiver issue stating "we need not decide whether Sharpley's waiver of his appeal rights, or such waivers generally, preclude any consideration of sentencing issues arising under Blakely or Booker."

The Sharpley decision also has some very interesting dicta on an issue previously spotlighted here on the blog.  As explained here, there is an argument that Booker's failure to discuss 18 U.S.C. § 3553(b)(2) might mean that the guidelines are still mandatory for child crimes and sexual offenses.  (Interestingly, Daniel Collins in his testimony at the USSC hearing today seemed to endorse this claim.)  Sharpley drops a footnote addressing this issue:

Booker excises 18 U.S.C. § 3553(b)(1) from the Sentencing Reform Act, which makes the Guidelines generally binding on courts, but does not excise 18 U.S.C. § 3553(b)(2), which makes the Guidelines binding in sentencing for convictions for certain child crimes and sexual offenses.... [But] we see no unique feature of Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines sentences for other crimes.  For this reason, we suspect that the Supreme Court’s failure to excise the entirety of Section 3553(b) was simply an oversight. Nonetheless, because any error in using a mandatory Guidelines scheme was harmless here, we reserve this issue for a case where it is necessary for decision and the parties have had a full opportunity to develop arguments on both sides.

Topical highlights from Day 2 of the USSC hearings

Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings.  Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.

1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data.  But a number of Commissioners astutely asked about how the data ought to be parsed.  Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.

2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons).  This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead.  Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review.  Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.

3.  The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry.  More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.

In today's great episode of how the Sixth Circuit turns...

If Court TV ever decides to create a legal soap opera, the plain error developments in the Sixth Circuit as it sorts through Booker cases would make a great story line.  As in a great soap opera, we get a new episode with a new twist each day; today's installment comes in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (available here).  Joyfully, this episode of the soap opera is a legal treat to watch, unlike a few prior episodes which made me cringe a bit. (Readers not fully engaged by the following long account of Barnett are still encouraged to ruminate in the comments about which actors ought to play which justices and judges in a Booker-inspired soap opera.)

Barnett is wonderful for many reasons, most notably because, in a split 2-1 vote, the Sixth Circuit carefully explains its remand for resentencing due to Booker even through the court holds, based on the prior conviction exception, "that there was no Sixth Amendment violation in the present case."  Writing for the majority, Judge Martin explains that, because "Barnett did not challenge his sentence on [the ground that the guidelines were mandatory] or any other ground before the district court[,] we review the district court's decision for plain error."  Moving swiftly to the third (prejudice) prong of plain error, Judge Martin thoughtfully explains why this "is an appropriate case in which to presume prejudice under the Supreme Court's decision in Olano:"

Instead of speculating as to the district court's intentions in the pre-Booker world, and trying to apply those intentions to predict the same court's sentence under the post-Booker scheme, we are convinced that the most prudent course of action in this case is to presume prejudice given the distinct possibility that the district court would have imposed a lower sentence under the new post-Booker framework and the onerous burden he would face in attempting to establish that the sentencing court would have imposed such a sentence.

This is not to discount the possibility, however, that in other cases the evidence in the record will be sufficient to rebut the presumption of prejudice.

In this thoughtful discussion and also in finding the fourth prejudice prong satisfied, the Barnett court draws significantly from the Fourth Circuit's work in Hughes and the Second Circuit's work in Crosby.  The court also concludes by noting that, "because we have concluded that the district court committed plain error in this case, that error cannot constitute 'harmless error.'" 

Judge Gwin, an Ohio district judge sitting by designation, concurs to thoughtfully explain why he believes that, in addition "to the majority's reasons offered for remand, two additional considerations warrant remand."  His opinion is a great read, and includes an interesting discussion of the appropriateness of remand "in light of one of the underlying purposes of the plain error doctrine: the economy of judicial resources."  Among other astute points, Judge Gwin notes that in many plain error precedents "appellate courts declined to remand, because to retry a case would be to expend a great amount of resources [but] where a re-sentencing is at issue, the costs are far less."  Drawing on his own experiences, Judge Gwin says "[h]aving presided over hundreds, if not thousands, of sentencings, I believe the time devoted to post-Booker re-sentencing would be small."

Chief Judge Boggs is not convinced, and he adds a number of additional rich insights to the discussion.  Here is his summary of his dissent on the plain error issue, which emphasizes that the district judge sentenced Barnett to the middle rather than the bottom of the calculated guideline range:

I agree with the court's conclusion that the district court's use of the pre-Booker sentencing rubric was plainly erroneous in light of present law, but I do not believe Barnett has shown the error prejudiced his sentencing.  First, as a factual matter, I believe the record indicates the district court felt the sentence was fair and would therefore give the same sentence post-Booker.  Second, as a matter of law, I believe the court errs by concluding that we should reverse when the record is silent as to prejudice.

The importance of, and another great example of, district court Booker explanations

One huge theme that developed at the USSC hearings this week (links here) concerned how critically important it is for district judges to fully explain and document their sentencing decisions (and provide this information to the USSC).  On this point, Judge Cassell again stressed the always show your work point, and the Commissioners and other witnesses repeatedly emphasized that effective assessment of the post-Booker world would depend heavily on how well district courts document and justify their decisions.  (Indeed, some astutely suggested that Congress would be more troubled by reports that judges were flouting their responsibility to carefully consider the guidelines than by any well-reasoned sentencing outcome.)

Confirming why it is so valuable to have such explanations is a decision from North Dakota Chief Judge Daniel Hovland in US v. Peach, 2005 WL 352636 (D.N.D., Feb. 15, 2005).  In a truly peachy opinion, Chief Judge Hovland provides an up-to-date account of the jurisprudential debates over Booker and even quotes USSC Chair Hinojosa's data report from his House testimony to spotlight that "federal district courts are sentencing pursuant to the Sentencing Guidelines in the overwhelming majority of cases." 

Adopting language from Judge Hinojosa's testimony, Chief Judge Hovland explains why he thinks that the "proper methodology for sentencing in the post-Booker environment is that federal district courts should give the Sentencing Guidelines substantial weight."  And then Chief Judge Hovland goes on, in the case at hand, to thoughtfully explain how he has "carefully considered the factors enumerated in 3553(a)" and "considered the nature and circumstances of the offense as well as the history and characteristics of the Defendant."  He then imposes a 100-month sentence, which was at the bottom of the applicable guideline range, as punishment for a life-threatening drive-by shooting by a defendant who apparently had a long criminal record. 

In addition to spotlighting and praising another thoughtful district court Booker decision, I stressed the case's facts because it confirms my hypothesis here that the guidelines will likely be closely followed for violent crimes committed by repeat offender and variances are likely to arise mostly in non-violent crimes committed by first offenders.  This instict led me to stress in my USSC testimony the importance of having post-Booker analyses especially attentive to the distinction between first-time, non-violent offenders and repeat, violent offenders.

USSC hearings continue...

Another big day at the US Sentencing Commission, with 11 witnesses with a variety of guideline experiences and perspectives scheduled to testify.  A lot of today's witnesses' testimony is already linked to this agenda, and I hope to report on highlights later today.  Coverage of yesterday's hearings can be found here and here.

UPDATE: And after a loooooong morning, the USSC hearings finished up this afternoon with a lot of important ground covered and key issues spotlighted.  I will have a series of coming posts about the substantive issues, but I can start the post-mortem by highlighting two evolutions in the developing post-Booker nomenclature: (1) Judge Cassell's term "variance" to describe non-guideline and non-departure sentences seems to be gaining adherents, and (2) the Bowman fix may become known as the Collins fix now that Professor Bowman has officially abandon the idea, but former Associate Deputy AG Daniel Collins continues to promote it.

Pondering a victim's role in sentencing

One quite intriguing issue that came up twice during today's US Sentencing Commission hearing (highlights here) concerned the role of crime victims at sentencing.  Both Judge Cassell and victim advocate Collene (Thompson) Campbell discussed briefly victim participation in the federal sentencing process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771). 

The tail end of Judge Cassell's testimony talks through these victim rights issues in some depth (and includes the text of the new statute).  And the Q & A at the USSC hearing today spotlighted some of the intriguing issues raised by having to give victims a defined role in sentencing (e.g., should victims have a right to see (and contest findings within) a presentence report?).

The particulars of working victims into the sentencing process will present various challenges, but my first question is who exactly qualifies as a victim under the new federal law.  The new statute states: "For the purposes of this chapter, the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense." 

In the context of some offenses, the victims as so defined will be obvious; but often there could be tough legal questions about who could claim to be "directly and proximately harmed" by various federal offenses.  Are there any "victims" in drug cases, in firearm possession cases, in immigration cases?  Are there hundreds of thousands of victims in large corporate frauds that impact financial markets?   (Notably, the statute has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" the new statutory rights, "the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.")

Moreover, because the statute gives victims a right to be "reasonably heard" at a plea proceedings, it would seem that "victim" status has to be determined based on offenses charged and not just offenses that are the basis of a conviction.  But that in turn leads me to wonder exactly when victims' rights vest (I would think at the time of the offense rather than the time of indictment), and also whether such rights might at some point devest (perhaps upon the dropping of a charge or an acquittal).

In sum, though granting victims rights in the criminal justice system sounds good in theory, I suspect it will prove quite challenging in practice.  Notably, the new Crime Victims Act gives the Attorney General a year to promulgate regulations to enforce these rights, and I am now very interested to see what those regs will say.  I would bet some of these issues have been addresses in some states that may have similar legislation, but federal laws and crimes are likely to present its own unique issues.

Another Booker ruling from the Sixth Circuit

Continuing to set the Booker pace (and continuing to make my head spin), the Sixth Circuit gave us another take on Booker review with its decision Tuesday in US v. Murdock, No. 03-1811 (6th Cir. Feb. 15, 2005) (available here).  The main Booker part of the opinion reaches the conclusion that Murdock's sentencing enhancement was not Blakely problematic because it involved a legal conclusion based on facts admitted by the defendant through his plea.  Then the court explains:

We note that "[t]here may be some federal criminal defendants whose cases were on direct review at the time the Supreme Court issued Booker who are entitled to remand even though their sentences are consistent with the Sixth Amendment." United States v. Milan, No. 02- 6245/6302 (6th Cir. Feb. 10, 2005), slip op. at 8.  This opinion should not be read to foreclose a defendant’s argument, in the appropriate case, that this Court should vacate and remand his sentence on the ground that the district court regarded the Sentencing Guidelines as mandatory at the time of his sentencing.  However, Murdock has made no such argument in this case, and we decline to do so on his behalf.

I read this passage to hold that Murdock essentially forfeited a claim based on what I have called here the "statutory error" which arose from the pre-Booker (and now improper) mandatory application of the guidelines in his case.  However, as I reader Booker, the Sixth Circuit after this finding still had an obligation to review Murdock's sentence under the new 3553(a)-defined reasonableness, which it did not do.

Interesting midwestern Blakely perspectives

This week has brought interesting new perspectives on Blakely and Booker from intermediate appellate courts in Indiana and Ohio.

From Indiana we get Abney v. State, No. 25A05-0407-CR-394 (Ind. App. Feb. 15, 2005) (available here), which is not all that exceptional in its basic holding: the court mostly reiterates prior state rulings that Indiana's presumptive sentencing system is subject to Blakely, but then is able to affirm a sentence because the trial court had relied on some Blakely-compliant aggravating sentencing factors.  But the case is noteworthy because, as spotlighted by the Indiana Law Blog here, a concurring judge argues that Booker's gloss on Blakely indicates that Indiana's sentencing laws are not in fact Blakely problematic.

From Ohio, where earlier this month as noted here the First District appellate court concluded that Booker's gloss on Blakely did make Ohio's sentencing system problematic, we get another appellate panel (like the one noted here) providing an extended and thoughtful constitutional defense of Ohio's sentencing system.  In State v. Trubee, 2005-Ohio-552 (3d App. Dist. Feb. 14, 2005) (available here), the court draws on Justice O'Connor's Apprendi dissent to contend that a "close examination of the Supreme Court's rulings demonstrates that the Court has implicitly found that the structure of Ohio's sentencing scheme does not violate a defendant’s constitutional rights."  Notably, to perhaps ensure rapid resolution of these matters by the state supreme court, the Trubee court decided to "sua sponte certify this decision pursuant to App.R. 25 to the Ohio Supreme Court for conflict with the recent decision of the First District Court of Appeals."

There they go again...

Thanks to Appellate Law & Practice, I see that the circuits are back in Booker action, and later tonight I hope to discuss a few federal and state Booker/Blakely cases that hit my virtual desk today.

But catching my eye first is the amusingly opaque unpublished Booker disposition coming from the First Circuit today in US v. Brichetto, No. 04-1820, (1st Cir. Feb. 15, 2005)(available here).  In this case, the First Circuit makes its first mention of Booker with this lone comment while affirming a conviction: "Brichetto has appropriately waived the Booker claim of sentencing error he originally pursued on appeal."  I am inclined to assume this means the defendant withdrew his claim (perhaps for fear of getting a tougher sentence on remand), but the use of the term "waived" has piqued my curiosity about whether "appropriately" is the same as "voluntarily" in this case.

A few highlights from Day 1 of the USSC hearings

The US Sentencing Commission did itself proud through its first day of Booker hearings: it invited a diverse set of witnesses who addressed a diverse array of important post-Booker topics and shared advice that should help the USSC in its challenging post-Booker work.  The richness of the testimony and the Q & A cannot be fully captured in this space, but below I spotlight a few substantive and rhetorical highlights drawn from the written testimony of today's witnesses (most of which is linked here at the USSC's website).  Later tonight, I hope to have the time and energy to do a few posts with commentary concerning today's festivities.

Chief US District Judge Thomas Hogan (DC): "[T]he US Judicial Conference has not yet taken an official position on sentencing in the wake of the Booker decision....  [T]he Judicial Conference's Criminal Law Committee has taken the lead and is now hard at work developing policy recommendations for the Conference's consideration [which likely] will be considered at the March 15, 2005 meeting of the Judicial Conference."

Chief US District Judge Lawrence Piersol (SD): "I believe that Booker provides a nearly perfect sentencing system.... I urge the Commission to take the position that the 'Bowman fix' is no fix at all — it is somewhere between a flat tire and a blowout.... The Bowman 'fix' would at the least be declared unconstitutional in some Circuits so we would have a year or two where federal sentencing law would be in an upheaval while that issue was being initially resolved."

US District Judge Paul Cassell (Utah): "[T]he Commission invited me to suggest changes to the Guidelines and other bodies of law that might be appropriate in the wake of Booker.  I would like to respectfully offer seven tentative suggestions.... The common theme to these suggestions is that they would all encourage judge to say more closely attuned to the Guidelines."

US District Judge Lynn Adelman (ED Wisc): "Booker does two things that will lead to a more just system: (1) it restores federal judges to a meaningful role in the sentencing process; and (2) it makes clear that fairness in sentencing requires consideration of factors other than reducing sentencing disparities."

US District Judge Richard Kopf (Neb): "[J]udges obviously know more about the individuals we sentence than many other people [but] the significance of this truism to the statutory goals of sentencing is often zilch.... [T]he importance of 'knowing the person' is overstated by those who want excuses to do something different than what the Guidelines dictate.... Congress and the Commission should go slow and see what happens. If most district judges exercise the restraint that I predict they will, and circuit judges use Guidelines-sensitive standards for the defiant, Booker will turn out to be, in the words of one famous federal prisoner, 'a good thing.'"

Mary Price (FAMM): "The Blakely and Booker opinions launched what you recently described as a national conversation about sentencing. Your voice must figure prominently in that discussion. This is not a time to tinker around the edges of reform or rush to adopt measures designed to just meet, or worse, avoid, constitutional requirements.... We ask you to think big and reach back to foundation principles of justice."

Collene (Thompson) Campbell (MOVE): "We must make certain that fair and reasonable, but realistic and tough, sentencing guidelines are in place and followed. We must be positive that our standards are not weak, or give into those with a propensity for violence.... This Commission must build into its sentencing policies and procedures a requirement that Judges are obligated to give the victim a right to be heard and must take into consideration and understand the impact of the crime, along with the views of the victim, prior to making any sentencing decisions."

Paul Rosenzweig (Heritage): "Booker will not endure [because] the pushme-pullyou solution in Booker can long withstand either political or constitutional scrutiny.... There are so many questions that underlie the 'reasonableness' standard that I feel utterly confident in predicting years of litigation, multiple circuit splits, and the frequent necessity for clarifying Supreme Court intervention."

Curious grants of new trials based on Booker

A reader this morning passed along two notable Booker decisions issued earlier this month which have only recently come on-line. In parallel rulings in two fraud cases, US v. Williams, 2005 U.S. Dist. LEXIS 1980 (N.D. Ohio Feb. 4, 2005), and US v Rohira, 2005 U.S. Dist. LEXIS 1981 (N.D. Ohio Feb. 4, 2005), Senior US District Judge Ann Aldrich relies upon Booker to grant defendants a new trial because, to quote from the Williams opinion headings, the "Jury Was Never Expressly Charged with Finding the Amount of Loss beyond a reasonable doubt and Agent's Unreliable Estimate Probably Tainted their Deliberation on That Issue" and "Unreliable Loss Estimate Likely Influenced Jurors' Decision on Guilt or Innocense [sic]" and "Jury's Consideration of Amount of Loss at Trial Is Inextricably Linked to Its Consideration of that Same Issue at Sentencing."

Based on a quick read, I fear that these rulings may be reading too much into Booker because of broader concerns the court may have about convictions apparently based on shaky evidence. (In a footnote, the court states: "The prosecution's use of this deeply flawed estimate of a central fact [the amount of fraud loss] may constitute grounds for a new trial independent of Booker and Blakely.")  But the decisions still serve as a sober reminder of the concerns and potential confusions raised by Sixth Amendment issues and the Booker court's distinctive and curious resolution of such issues.

An inside-the-Beltway Booker analysis

An on-time flight and a hotel room available early gives me a little blogging time before heading over to this afternoon's US Sentencing Commission hearing.  I am pleased to see that the USSC now has a lot of the hearing witnesses' written testimony linked through this agenda page so even folks outside the Beltway can follow the action.

I hope to comment at length tonight about what transpires at today's USSC hearings, but first I have other items of interest to share.  Perhaps fittingly as I was in transit to DC, another government document about Booker arrived in my in-box: a research report entitled "Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options" authored by the Congressional Research Service of the The Library of Congress.  The short report, which can be downloaded below, provides a useful overview of Booker and the policy issues facing Congress.  The report is dated February 9, so I assume it was prepared in conjunction with last week's House hearing in Booker (highlights here).

Download crs_analysis_of_fsg_and_booker.pdf

Off to DC for a big week

I leave in the early morning Tuesday to head to Washington DC in order to testify in the late afternoon at the US Sentencing Commission hearings.  Details on the USSC hearings and some of the written testimony are available here.

I will be in DC through Friday because late Thursday I have the honor of participating in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court.  (Dahlia Lithwick — who has been described as "the rockingest Supreme Court columnist ever ever ever" — is a co-panelist, and she recently got in the spirit of the event through this interesting American Lawyer piece which explains that "the Web has changed [Supreme] Court reporting quite significantly, and changed the way the Court does business almost not at all.")

Though I expect to have hotel internet access, blogging is likely to be a bit light through the week.  But, by being a busy Booker beaver, I leave behind many posts on a range of Booker/Blakely issues.  Here's an abridged summary with links:

BOOKER CIRCUIT COURT RULINGS

• Sorting through the Circuit circus
• Another important (and opaque) 3d Circuit remand
• More (a lot more) notable circuit Booker work
• Reports on Booker circuit action

OTHER BOOKER INFO AND COMMENTARY

• Thoughts on post-Booker data collection
• One needed quick fix: a new USSC Commissioner
• Taking (insightful) stock of the post-Booker world
• Reports on recent Booker district court sentencings
• Mark your Booker calenders (list of events has been updated tonight)
• Celebrating a month of Booker (includes a Word version of a month of post-Booker blog posts)

BOOKER HEARINGS INFO AND COMMENTARY

• The next big hearing and some written USSC Hearing testimony
• More reports on the House hearing
• House hearing highlights

BLAKELY IN THE STATES

• The New Jersey Blakely saga continues
• The Ohio Blakely saga continues
• Booker wisdom for the states from the Vera Institute

And, if somehow all these materials do not fulfill all your sentencing law and policy needs, you can head over to this new webpage I have created to assemble sentencing law resources, which now includes a (still-in-development) Booker basics page.

The next big hearing and some written USSC Hearing testimony

After the circuits went wild at the end of last week (some details here, commentary here), today has been, at least according to my in-box, a mercifully quiet day for court decisions.  And that quiet has, thankfully, given me needed time to complete my written testimony for the US Sentencing Commission hearing that starts tomorrow afternoon and is formally entitled "entitled "U.S. v. Booker/Fanfan and the Impact on Federal Sentencing." 

The Commission had provided is Public Hearing Agenda here and some Topics of Discussion here for this exciting next round of Booker hearings.  I must say that I am a bit fearful that even I may soon start suffering from Booker overload.  Last week's House hearing (highlights here) had only four witnesses and was still a bit overwhelming.  (Notably, a full webcast of that hearing is now available here.)  The USSC is bringing in twenty (20!) big-time witnesses for its two days of hearings, and I suspect every one of them will have important and interests insights and ideas to share.

I have the pleasure of sharing Tuesday's final panel, which is to provide "A View from Academia," with Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, and Adjunct Professor, George Mason University School of Law.  You can have an opportunity to see how things look from academia by reading my written testimony and Paul's testimony, which I provide for downloading below.

Download final_berman_ussc_testimony_215.pdf

Download ussc_feb_152004_rosenzweig.PDF

UPDATE: I am very pleased to have now received a copy of Judge Paul Cassell's written testimony for the USSC hearing tomorrow.  It runs fifty pages (50!), though parts I and II cover the ground of Judge Cassell's Wilson opinions.  But Part III makes specific recommendations to the Commission about how to improve the Guidelines after Booker (e.g., encouraging the Commission to reemphasize that "forbidden" factors remain forbidden and to discourage 5K1.1 downward departures for substantial assistance absent a government motion).  And Part IV touches on the rights of victims to participate in the federal criminal justice process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act.  Interesting stuff.

Download judge_cassell_ussc_hearing_testimony.rtf

Sorting through the Circuit circus

Though I can barely find time to read all the circuit court Booker rulings (recently detailed here and here and here and here and here), my growing sense is that the appellate handling of "pipeline case" is a disparate mess.  Of couse, given Justice Breyer's opaque closing paragraph in Booker, this comes as no big surprise (I expressed my fear of a remedy mess here hours after Booker came down).  But the situation seems to be developing into a (twelve-ring) circus that risks significantly undermining a federal sentencing system which is purportedly committed to administering equal justice.

To clarify my own thinking about the rapid-fire circuit dispositions, I have below outlined my own understanding of how Booker should be understood for pipeline cases now on appeal.  I would be eager for readers to use the comments to provide feedback on my analysis.

The two types of Booker errors: I believe each part of the Booker opinion defines a different type of error.  Justice Stevens' opinion explains that there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt.  Justice Breyer's opinion explains that, given the Court's finding of constitutional error, there was a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory with heightened attentiveness to the instructions of 3553(a). 

Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding.  But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory and was imposed without heightened attentiveness to the instructions of 3553(a).  Indeed, the cases before SCOTUS define these realities: Booker's sentence included judicial fact-finding so it involved both constitutional error and statutory error; Fanfan's sentence was not based on judicial fact-finding so it involved only statutory error.  Both cases were remanded for resentencing.

The Booker remedial instructions:  In his final paragraph, Justice Breyer explains that "we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review."  I think that means that both constitutional and statutory errors must be recognized and remedied in all federal cases not yet final.  However, Justice Breyer also suggests that reviewing courts will be able to "apply ordinary prudential doctrines" to ensure that not "every appeal will lead to a new sentencing hearing."  And here is how Justice Breyer explains the application of these prudential doctrines:

[Reviewing courts can determine] whether the issue was raised below and whether it fails the "plain-error" test.  [And] in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

What I think Booker means for pipeline cases: Putting all these pieces together, I believe circuit courts, in cases with constitutional error, can and should apply plain error analysis if the Sixth Amendment was not raised below.  However, even if the plain error standard is not satisfied OR if a sentence did not involve "a Sixth Amendment violation," circuit courts still must, because of statutory error, apply harmless error analysis to determine if resentencing is still warranted AND also must review every sentence for reasonableness even if application of "ordinary prudential doctrines" makes resentencing unnecessary.

Thoughts on post-Booker data collection

In this post reflecting on last week's House hearings (highlights here), I stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker.  But, even as we properly focus on sentencing data post-Booker, we should be mindful of the great Disraeli/Twain quote: "There are three kinds of lies: lies, damned lies and statistics."

The challenge for the US Sentencing Commission and others will be not only to collect and analyze post-Booker sentencing data, but also to present this data accurately and effectively.  I thought the data report on the 733 cases sentenced on or after January 12 as of February 4 in Judge Hinojosa's testimony to the House Subcomittee last week was very well presented, but its accounting of the cases still raised a lot of "coding" questions in my mind. 

Moreover, I fear a lot of coming data confusion in part because we do not even have a settled nomenclature for new-fangled post-Booker sentences that are neither within the guidelines nor represent "old-world" departures: the Second Circuit in Crosby suggested the term "non-Guidelines sentence"; Judge Cassell has coined the term "variance"; the defense bar is partial to "statutory sentence".

On this subject, I see White Collar Crime Prof Blog has this interesting post on related data issues which reports on Judge Nancy Gertner's proposal for developing a "sentencing information system" which seeks to move away from "act of departure" reporting to a "why departing" reporting system.  My casebook co-author Marc Miller should be credited for promoting sentencing information systems in this recent article, which notes their use in Scotland and New South Wales.  Whether and how data could be collected and assembled to create an effective sentencing information system for federal sentencing is one of the many interesting post-Booker issues to watch.

One needed quick fix: a new USSC Commissioner

Though the move of US Sentencing Commissioner Michael O'Neill from the USSC to the Hill to become Counsel for the US Senate's Judiciary Committee is old news (I first reported it here), it is interesting to see that the USSC has just posted on its website O'Neill's official resignation letter.  It is also still fun to speculate on the role O'Neill may be playing in his new job as the Senate contemplates hearings and a possible legislative response to Booker. (I am inclined to believe that O'Neill had a hand in encouraging Judiciary Committee Chair Arlen Specter to take the "let Booker percolate a while" approach reflected in comments reported here.)

Meanwhile, since O'Neill's departure means the USSC will be one Commissioner short at a crucial time, this development does present an opportunity for one important quick fix in the wake of Booker.  The President ought to expeditiously name, and the Senate ought to expeditiously confirm, a replacement for O'Neill so that the USSC can be working again at full force ASAP.

The New Jersey Blakely saga continues

As I have detailed in posts here and here and elsewhere, the story of Blakely in New Jersey (aka the state which gave us Apprendi) is quite engaging and dynamic.  Responding to the state's lament that "uncertainty regarding the effect, if any, of the Blakely opinion on [New Jersey's] ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors," the New Jersey Supreme Court recently agreed to review three major Appellate Division Apprendi and/or Blakely rulings on an expedited schedule.

NJ attorney Steve Sanders — who has been involved in these cases as an amicus  for the Association of Criminal Defense Lawyers of New Jersey — has been kind enough to pass along some of the briefs in these cases.  For the interested reader, I have provided these briefs for downloading below.  Among the notable aspects of the briefs is that the defendants say that Booker shows that Blakely is applicable to NJ's sentencing laws, while the State argues that Booker reinforces its argument that NJ's scheme is perfectly constitutional.

Download nj_state_brief_in_natale.pdf

Download nj_acdl_natale_supp. Brief.pdf

Download nj_abdullah.spplmtl.brf1.pdf

The Ohio Blakely saga continues

I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here).  To its great credit, as detailed in memos linked here, Ohio Criminal Sentencing Commission has been tracking Blakely developments closely, and it has been regularly updating this memo with the latest Ohio appellate court decision on Blakely.  (Relatedly, the Ohio Criminal Sentencing Commission has also recently produced this report entitled Monitoring Sentencing Reform which asserts that Ohio has generally achieved its stated goals with the sentencing reform it enacted a decade ago.)

As reported here a last week, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio.  The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong."

But this week, in Ohio v. Abdul-Mumin, 2005-Ohio-522, 2005 WL 315062 (Ohio App. 10 Dist. Feb. 10, 2005) (available here), Ohio's Tenth Appellate District explained in the most thorough decision I have seen why it believes Ohio's sentencing scheme does not have Blakely problems.  Here's the heart of the Court's concluding analysis:

By enacting [Ohio's sentencing presumptions], the Ohio General Assembly did not change the definition of any existing offense.  It simply conferred favored status upon minimum sentences for first-time imprisonment, and provided directives to guide the use of factors that have always been considered by sentencing courts to bear upon the appropriateness of a particular punishment, i.e., "the seriousness of the offender's conduct" and the need to "adequately protect the public from future crime by the offender or others."... [T]he factors involved in the imposition of appellant's non-minimum sentences did not enlarge appellant's penalty for any offense beyond the maximum authorized by the jury's verdict.  As such, their use was not violative of appellant's Sixth Amendment right to a trial by jury.

Though the Abdul-Mumin court makes a quite spirited defense of Ohio's sentencing laws in the face of Blakely, I know that not everyone will be convinced of its analysis.  Specifically, I had a student last semester who examined Blakely in Ohio and concluded that Blakely must be applicable to Ohio's sentencing laws.  That student recently completed a polished write-up of his conclusions and he has allowed me to share his perspective on Ohio's Blakely problems here:

Download sabol_analysis_of_blakely_and_booker_in_ohio.doc

Taking (insightful) stock of the post-Booker world

Though I already celebrated a month of Booker in this post here, a collection of terrific items in the papers and around the blogsphere this morning allows us all to take stock of our sentencing world a month after Booker.

First, this article in the Baltimore Sun provides a terrific overview of post-Booker developments in federal sentencing.  Similarly, the White Collar Crime Prof Blog has a great post here surveying and assessing the post-Booker landscape, as well as another fine post here spotlighting that DOJ is still able to brag in press releases about tough sentences imposed on white-collar offenders.

Second, in this terrific op-ed in the Washington Post, Andrew Goldstein provides a fantastic account of the importance of transparency in sentencing decision-making.  Though particularly stressing why, post-Booker, "it is crucial for judges to openly explain their sentences," the piece does a wonderful job of highlighting more broadly why every actor and institution involved in the development of sentencing law and policy ought to publicly explains its decisions.

Third, as a reminder of broader issues in a post-Booker world (which, as noted here, I realize do exist), the Los Angeles Times has this terrific article about the ways Governor Arnold Schwarzenegger is embracing and promoting rehabilitation-oriented policies and programs in California.  TalkLeft here has a nice summary account of the article.  Notably, while the article suggests Arnold is "veering sharply from the law-and-order mantra of his Republican Party," I think this work by The Terminator (or should we call him now The Rehabilitator) is just another example of the new criminal justice right I have identified and that Grits for Breakfast has noted in Texas.

Another important (and opaque) 3d Circuit remand

A reader pointed out that I missed an important (published) remand from the Third Circuit in my review of all the late week Booker action from the circuits (detailed here and here and here and here).  As in its unpublished Mortimer ruling, the Third Circuit's Booker disposition in US v. Davis, No. 02-4521 (3d Cir. Feb. 11, 2005) (available here), does not provide much factual background or legal analysis.  Yet, the one paragraph Booker discussion in Davis hints that the Third Circuit might be employing the broadest remand standard of any circuit.  Here is the entire Booker discussion appearing on the last page of the Davis opinion:

Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.

Reading Mortimer and Davis together, I am inclined to think that the Third Circuit has decided to remand every Booker claim without even bothering with plain error review. (The Third Circuit Blog comes to this same basic view here based on just the Mortimer ruling.)  Of course, if it is the Third Circuit's plan to remand every case, it ought to make that clear.

As I hope to explain in a later post, I think a circuit plan to remand all sentencing cases still on direct review that were imposed under mandatory guidelines might be the most just and efficient way to deal with the Blakely/Booker pipeline cases.  In other words, I believe it would be most prudent for the circuits to generally forgo using prudential doctrines to affirm sentences imposed under the old mandatory guidelines system.