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January 18, 2007

My effort to help with the SCOTUS docket problem

As noted here and here, one reason given for the Supreme Court's shrinking docket is a purported lack of cert-worthy cases.  As readers know, I think there are plenty of cert-worthy sentencing issues, especially in the wake of Blakely and Booker.  And, ever eager to help out the Justices, I have been a part of a team that yesterday filed a petition in US v. Faulks, which concerns the procedures for revoking supervised release in a case with extraordinary facts.  Here's the pitch from the petition (which can be downloaded below):

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years' supervised release. Seven years later, as Faulks's term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release.  Faulks denied the allegation.  At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge's disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

Download faulks_cert_petition.pdf

January 18, 2007 at 11:55 AM | Permalink


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One weakness with the petition is that you don't appear to have a real circuit split. It seems that in all circuits that have considered the question, there is broad agreement as to the result. The disagreement is over the reasoning.

In other words, Faulks would have lost her appeal in every circuit. The only difference would have been the underlying reasons for it. I don't think the Court traditionally views this type of difference as a true circuit split.

Posted by: Marc Shepherd | Jan 18, 2007 1:12:53 PM

Actually, if you take a closer look at the petition, you'll see that there is a direct conflict with the holdings from several state courts. And the Court does sometimes grant cert on the basis of those splits.

Posted by: C.Hessick | Jan 18, 2007 1:29:03 PM

I would also add, Marc, that all the Circuits have ruled the same way on Blakely retroactivity and SCOTUS seems interested in that issue. Especially at a time when the docket has (lots of) room, I would hope the Court would be interested in issues that are important and challenging, and not just in issues that produce dramatic inter-circuit conflicts.

Also, it should also be significant, in my view, that all the circuit reasoning is quite suspect and shows a general disinclination to give effect to Blakely.

Posted by: Doug B. | Jan 18, 2007 1:34:28 PM

Does it make a difference to the Supreme Court that the defense counsel filed an Anders brief, and that the 4th Circuit didn't directly address the issues raised in the petition?

Posted by: | Jan 18, 2007 1:39:44 PM

Just read the petition. Great job. I'm not sure how this issue could be more squarely presented to the Court. One thing that struck me was how obviously wrong the circuits are on this. I can't really blame them, though -- the Supreme Court is really the body that should speak on these questions.

If you look at history, the Court will be mostly likely to take a case with federal circuit splits. But there is one type of case that is even more likely to get a grant: Where the federal circuits have created a direct split with the SUPREME COURT. That seems to be what's going on here. There's just no way the circuits results or reasoning can be reconciled with Blakely.

I wouldn't think the Anders motion/unpublished opinion thing will hurt. The Court takes unpublished opinions all the time. It might actually make it a little bit easier since they don't have to actively engage with a lengthy circuit opinion. In fact, the back handed way the 4th Circuit treated this (and, from my quick skim of the Appendix, the 4th Circuit didn't even rely on its own precedent) indicates that the passage of time won't create a circuit split as to results. So, there is no use in waiting to grant cert on one of these.

Posted by: John | Jan 18, 2007 2:00:20 PM

I never suggested that a decision by a court of appeals to publish or not would have anything to do with the Supreme Court's decision to grant cert.

Rather, my question based on the fact that the Supreme Court generally does not address arguments not preserved below. I'm not sure how an Anders brief would affect this practice, though. I only skimmed the CA4 opinion, but I did not read it as squarely addressing the arguments raised in the petition.

Posted by: | Jan 18, 2007 2:18:54 PM

The argument was clearly made below, and so is preserved. If you look at the docket sheet, the Fourth Circuit didn't grant the Anders motion until after its decision. So, what probably happened is that the appointed attorney made the Blakely argument, it failed, and then the Anders motion was granted so that he wouldn't have to write a cert petition for the defendant. The Fourth Circuit appears to have erroneously treated Blakely and Booker as one and the same, which is why Blakely isn't specifically mentioned in the opinion.

Posted by: Michael Naumann | Jan 18, 2007 3:04:46 PM

"The argument was clearly made below"

How is this clear?

Posted by: | Jan 18, 2007 4:24:07 PM

It is a doozy of a case, and it is certainly well phrased to catch the interest of Scalia and other justices who believe in Apprendi.

The hard part will be to convince the justices that there is a meaningful distinction to be drawn between a de facto federal punishment for an untried state crime here, and other circumstances where judges do the same thing such as considering uncharged conduct in a sentencing decision (deplorable, but squarely supported by Supreme Court precedent) or revoking a supervised release for a technical probation violation that is not a crime like failing to meet with a probation officer at an appointed time, where there is no alternative process to follow (harder to distinguish, and a situation where a civil standard of proof before a judge is well established precedent).

What legal standard did the 4th Circuit use? Is this really an abuse of discretion on the merits case (i.e. a punishment too severe for a mere condition of release violation as opposed to the underlying state law crime the judge considered) where the 4th Circuit was too generous to the trial judge?

Would a jury be required for any probation revokation where a maximum imprisonment sanction under the guidelines is imposed and there is also a supervised release component of the sentence?

Does the notion that the guidelines are advisory weaken this case, since a jury authorized the maximum sentence and this merely implements a jury authorized sentence?

The question presented seems to obscure the simpler question of whether the additional term of imprisonment combined with the prior term of imprisonment and interim supervised release term exceed the statutorily authorized punishment for the original crime, presumably, if it did, this would be an easier argument to make, and we wouldn't be in front of the Supreme Court.

Or, can this sentence exceed the original sentence because violating a condition of supervised release is itself a new offense, which would more directly implicate Apprendi?

Posted by: ohwilleke | Jan 18, 2007 4:31:13 PM

Just to clarify: I do realize that the Court sometimes grants cert. without a split in the Federal circuits. I just thought that the wording and structure of the petition appear to suggest a circuit split that does not really exist.

I certainly agree the case is troubling.

Posted by: Marc Shepherd | Jan 18, 2007 4:59:35 PM

To the anonymous poster: I can see how you find the Fourth Circuit's opinion ambiguous. I've been following this issue for some time, however, and knew about this case when it was first decided. Based on my review of the docket filings, I'm pretty confident the argument was raised below. This probably colors how I read the truncated Fourth Circuit opinion. I also doubt that Professor Berman (not to mention the other three attorneys listed on the cover) would have wasted their time had there been any concern about preservation. I doubt they got paid for their efforts.

To ohwilleke: This is my big question as well. Certainly it would have been a better case had the petitioner received the "actual max" as opposed to simply the Guidelines-max (though, at the time, these were one and the same). But I think maybe this is an illusory difference. As the cert petition points out, supervised release isn't considered "the end" of the term of imprisonment, as parole and (for the most part) probation is. So, what happened here was that the judge imposed a "new" prison term that she could not have otherwise imposed.

If the Justices are persuaded that Blakely imposes at least some limits on supervised release revocation, I don't see why they'd adopt a rule that would "protect" those defendants who had previously received the statutory maximum sentences but "not protect" those that hadn't. The former defendants are presumably the ones who are both more dangerous and more of a recidivist risk. I think that the Justices would instead treat all former offenders on supervision exactly the same, just as they are treated exactly the same under the SRA -- persons who have fully completed their prison term. In other words, once their release, they are "maxed out."

Posted by: Michael Naumann | Jan 18, 2007 4:59:40 PM

Ohwilleke: You said, ". . . or revoking a supervised release for a technical probation violation that is not a crime like failing to meet with a probation officer at an appointed time, where there is no alternative process to follow (harder to distinguish, and a situation where a civil standard of proof before a judge is well established precedent)."

What established precedent post-Apprendi says that a "technical violation" need only be demonstrated by a preponderance to a judge in order to revoke? I thought the statutory history in the cert petition (which I had not before been aware of) was quite illuminating on this point: Charge technical violations (or any violation for that matter) as criminal contempt of court, just like the original SRA said to do. What I took away from the petition is that you cannot revoke supervised release under Blakely EVER unless the defendant admits the violation or a jury finds a violation beyond a reasonable doubt.

Posted by: Michael Naumann | Jan 18, 2007 5:04:32 PM

The petition does an amazing job of turning a not-so-hot issue of: "Can a supervised release violation be found by a preponderance of the evidence?" to the quite concerning issue of "Can a judge impose 36 months imprisonment on a person five years after she finished serving her 30 month sentence, merely because the judge believes it is more likely than not she committed a state crime while on supervised release, and despite the fact that the State dismissed the charges with prejudice?"

I think the petition clearly brings out the "feel" of injustice in the case.

On another note, it would surprise me if most Americans knew that the type of condemnation and (not insignificant) term of imprisonment that occurred in this case without a trial happens all the time in this country. And the courts allow it merely because the person was convicted of some other unrelated crime in the past.

Posted by: DEJ | Jan 18, 2007 7:44:54 PM

This smells wrong to me. It's one thing to revoke probation--quite another to impose what is in effect a new sentence. I bet there's a lot of formalism in the analysis. But it seems at least inconsistent in spirit with some recent cases.

Posted by: federalist | Jan 18, 2007 9:49:50 PM

On top of that, the new sentence went well beyond the original one. In a normal probation or parole revocation context, I believe your maximum exposure is the end date of the original sentence.

Here, the defendant was within 2 months of completing her original term of supervised release --- indeed, it had expired before the court ultimately decided to toss her in the can for another three years.

Posted by: Marc Shepherd | Jan 18, 2007 10:20:13 PM

I guess the issue is whether, in the probation context, you can lose "time served" with respect to your probation because you didn't fulfill the conditions of your probation.

I don't know how this flew under the old system.

Posted by: federalist | Jan 18, 2007 10:37:52 PM

Mr. Naumann, thanks for the response. As I said, everything I know from this case comes from skimming the cert petition and reading the CA4 opinion. This looks like an interesting case, and I look forward to seeing what the Supremes decide to do with it.

Posted by: | Jan 19, 2007 10:51:57 AM

Just to give everybody an update on the case: On February 7th, the Court ordered the government to respond to the Faulks petition. This does not, of course, mean that the petition will receive a grant, but it is a very good sign. At the least, we know that the petition will almost certainly be on the "discuss list."

Posted by: Aaron Katz | Feb 8, 2007 5:19:54 PM

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