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April 25, 2006

Pondering the "Booker boomerang"

I recently received news from a federal defense attorney reporting on a drug case in which a higher sentence was imposed on his client after a Booker remand.  In his words, "Booker seems to be having a big negative boomerang effect on defendants fortunate enough to get the Booker remand." 

More evidence of this phenomenon comes from this notable article about a Booker resentencing in a high-profile corporate fraud case: "Former Westar Energy executive David Wittig was resentenced Monday to 60 months in prison in a 2003 bank fraud case, nine months more than his original sentence in the matter."   (As explained in the article and posts here and here, Westar executives have made a lot of sentencing news.)

These reports have me wondering yet again about whether the US Sentencing Commission is trying to track and assess all the Booker pipeline cases as they slowly work through the system.  Notably, Judge McConnell's recent Booker article (discussed here) has some fascinating statistics about Booker pipeline cases in the Tenth Circuit, and I sincerely hope folks at the USSC and elsewhere are trying to assemble and analyze this data throughout the nation.

I question whether there truly has been a "big negative boomerang effect on defendants" nationwide from Booker remands, though maybe this is true for certain types of cases or in certain regions (especially since the plain-error remand rules varied from circuit to circuit).  Of course, these issues are not only important on their own terms, but they can inform what we should expect if any other big sentencing changes from Congress or the Supreme Court create another set of sentencing pipeline problems.

April 25, 2006 at 08:00 AM | Permalink


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There is a strong argument, applicable to all cases involving offenses committed prior to January 12, 2005 (the date that Booker was decided), that Ex Post Facto principles, as applied through the Due Process Clause to new and unexpected court decisions interpreting statutes, bar any sentence higher than the top of the properly-calculated Guideline range, unless pre-Booker case law would have clearly allowed an upward departure. See Rogers v Tennessee (2001); Marks v United States (1977); Lindsey v Washington (1937). In addition, any purely discretionary sentence imposed on remand which is higher than that originally chosen by the sentencing judge arguably runs afoul of the Due Process Clause in another way -- the anti-vindictiveness principle of North Carolina v Pearce (1969) and its progeny.

Posted by: Peter G | Apr 25, 2006 10:03:16 AM

I agree that the argument Peter outlines above is "strong" because the Booker severance was an unprecedented act of judicial lawmaking. However, I have had no luck persuading lower courts. I raised that argument at a post-Booker federal sentencing, and the district court judge, after terming the argument "novel," rejected it in a 10-page unpublished memorandum opinion. The Association of Criminal Defense Lawyers of New Jersey also raised the ex post facto argument in NJ's 2005 Blakely case (State v. Natale II) in an attempt to dissuade the New Jersey Supreme Court from adopting the Booker remedy. The Court disagreed.

Posted by: Steve | Apr 25, 2006 1:00:47 PM

Yes, while the due process/ex post fact argument is pretty good (I've made it many times myself), it doesn't look like the courts are buying it. Not at the Circuit Court level, at least.

Posted by: JDB | Apr 25, 2006 1:33:00 PM

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