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September 4, 2007
Eighth Circuit adjudicates state justification law to uphold sentencing enhancement
I will never ceased to be amazed at all the state substantive criminal law that federal courts adjudicate (by a preponderance of the evidence) as part of federal guideline sentencing. Today the Eighth Circuit has a fascinating short ruling in US v. Raglin, No. 06-3432 (8th Cir. Sept. 4, 2007) (available here) that ought to intrigue everyone in law school interested in any of a variety of criminal law issues.
The facts in Raglin read like a Crim Law exam (in fact, I'll have to remember this case when I have an exam to write). Undercover cops posing as drug dealers went onto the defendant's property, though they moved to nearly public property when the defendant yelled at them. Apparently unhappy with their continued activity, the defendant then came out of his house with a loaded gun to shoo these "drug dealers" away. But then the cops showed their badges, chased the defendant into his house, and arrested him. Notably, the defendant "was charged with aggravated assault in state court, but that charge was dismissed after he was indicted on this federal charge [of felon in possession of a firearm]."
I'll make everyone read the case to see how all this becomes a federal sentencing issue (and since it is an Eighth Circuit case, you already know the outcome). But, as a Blakely fan, I cannot help but note this case as yet another amazing example of federal judges essentially trying defendants (by a preponderance of the evidence) for unadjudicated state crimes in order to apply federal guideline enhancements. Personally, I really don't think Raglin is what the Framers had in mind when they created a system of limited federal government and wrote detailed criminal procedural rights in the first Eight Amendments.
September 4, 2007 at 11:35 AM | Permalink
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Comments
This is nothing compared to the machinations gone through by the 5th Circuit in cases where they determine whether a prior state offense is a "crime of violence" or an "aggravated felony."
Posted by: dweedle | Sep 4, 2007 1:09:38 PM
Lawyers sometimes remind me of a group of scientists examining a surface they have discovered and arguing about whether it is covered with fur or feathers or scales, oblivious to the fact that it is actually part of a large monster with big teeth which are about to close around them and everyone else in the vicinity.
Obviously, I do not know all the details of the Raglin case (e.g., why were the "drug dealers" in his yard in the first place?), although I did read the appeals court decision. However, I still find it incomprehensivle that the Supreme Court can decide that facts which determine a sentence must be found by a jury, and yet judges can decide by a lower standard that a person was guilty of a crime of which that person had not been convicted (in fact, the state dismissed it!)
Lawyers get enmeshed in legal details about the pros and cons of this, while the rest of us just say it's absurd and devoid of logic (yes, and WRONG, too!). And yet, you people will argue that the Supreme Court didn't really mean exactly what it said, and if you look at it just right, saying a judge isn't allowed to do something actually means he can do it.
Permit me to quote 3553 (a)(2)(A): "to reflect the seriousness of the offence, TO PROMOTE RESPECT FOR THE LAW, and to provide just punishment for the offense." How am I as a citizen supposed to respect this convoluted "logic?" How am I supposed to feel anything but terrified that, should I be accused of a crime, even if a jury acquits me or the state drops the charge, a judge or appeals court can decide I did it anyway? Attorneys skilled in legal doublethink will find some way to argue that illegal is really legal and innocent actually means guilty if you construe it just right. But ultimately, defending this state of affairs in jargon sufficiently obscure that most non-lawyers don't understand it does not make the basic argument less flawed. And when the public perceives the application of the law as unfair, unjust and arbitrary, do we as a society not have a significant problem?
From another perspective, when we talk about what society is trying to accomplish with punishment and sentencing, don't we WANT people to chase drug dealers away? (Yes, I do realize Raglin wasn't supposed to have a gun, but should he have just run out unarmed and said, "Shoo"? Or maybe called the police so they could find a reason to arrest him?) If I see people who look like drug dealers on my front lawn, should I just assume they are cops and leave them alone? If one of them flashes a (possibly stolen or fake) badge while pointing a gun at me, do I instantly assume I'm safe and resist the temptation to run despite their otherwise disreputable appearance?
Or, given that Raglin is a felon and therefore defined for all time as "bad," do we just discount anything positive he tries to do as an aberration?
Posted by: disillusioned layman | Sep 5, 2007 10:20:11 AM
However, I still find it incomprehensivle that the Supreme Court can decide that facts which determine a sentence must be found by a jury, and yet judges can decide by a lower standard that a person was guilty of a crime of which that person had not been convicted (in fact, the state dismissed it!)
It's not that hard to understand.
If someone is convicted of being a felon in possession of a firearm, and if that crime carries a sentence of 0 to 20 years, then once the elements of the crime are proven beyond a reasonable doubt, the judge can constitutionally sentence the guy to 20 years in prison, or he can let the guy go with probation, or he can choose something in the middle.
This business of adjudicating uncharged state crimes comes into play because the federal government has decided that a byzantine algorithm must be used to help judges decide precisely what sentence between 0 and 20 years the guy gets. Instead of using his rough guess and his intuition, the judge looks at a bunch of other stuff, the probation office prepares a detailed report, and 18 USC 3553(a) gives the further direction that the sentence should be sufficient but no greater than necessary to comply with the general goals of sentencing.
If this system promotes disrespect for the law, much of that disrespect probably comes from a lack of comprehension about how it works.
If it bothers you that the range of the judge's discretion is so large based on so small a set of facts, then the answer is to have more detailed statutory descriptions of the offenses, and thus more elements to prove beyond a reasonable doubt.
Posted by: | Sep 5, 2007 1:09:36 PM
I understand that the judge has a wide range from which to choose in sentencing a person for being a felon in possession of a firearm. I understand that the judge might, for example, choose different sentences for someone who has been convicted of one low-level, non-violent felony and someone else who has multiple felony convictions. I am also aware that the rules which have developed as to what a judge can look at in making the sentencing decision are complex.
However, this does not address the issue of treating uncharged or acquitted conduct as if it had been proven to have occurred. Saying that I am not guilty of doing something, or not charging me with it, and then having a judge say at sentencing, "Oh, by the way, I'm going to act as if you had been convicted of that because I think you did it," I would argue, appears unjust to most rational non-lawyers and does not promote respect for the law. Apparently the judge is allowed to use his "rough guess and intuition" to decide I'm guilty of the uncharged conduct.
If you can explain logically why it is just to give me a longer sentence for something I was not charged with or of which I was acquitted by a jury, I'm all ears.
Posted by: disillusioned layman | Sep 5, 2007 2:03:13 PM
DL: The problem is that before Blakely nobody thought that sentencing could possibly invoke the same protection as the guilt/innocence phase. This sort of sentencing has been going on in courts FOREVER... until the "Apprendi Creep" of those wacky, wacky men (and women) in robes who just made it up, out of thin air, and a tortured (and possibly drug-induced) reading of the Constitution.
Posted by: dweedle | Sep 5, 2007 6:05:25 PM
If you can explain logically why it is just to give me a longer sentence for something I was not charged with or of which I was acquitted by a jury, I'm all ears.
The point is that this uncharged conduct doesn't raise the statutory maximum.
Going back to the hypo, assume that it's proven beyond a reasonable doubt that you're a felon in possession of a firearm and that that crime carries a sentence of 0-20 years. Because the elements of the crime have been proven beyond a reasonable doubt, the judge is entitled as a constitutional matter to sentence you to 20 years (setting aside 3553(a) for the moment).
How is the judge supposed to decide whether you get zero, 20, or something in the middle? He could look at the facts of the case as they came out at trial or in the plea agreement. He could look at your criminal record... Then all of the mitigating factors come in, like your family background, your economic situation, your medical condition, etc. Then the government argues aggravators.
The point is that once the range is established (statutory minimum to statutory maximum), the judge has discretion within the range. Uncharged offenses can guide the judge's discretion just as well as all of the other fluffy, subjective stuff that comes in at that point.
The reason uncharged conduct isn't problematic from a constitutional standpoint is : (1) The judge can't sentence you to more than 20 years based on it, and (2) the judge isn't prevented from giving you a lower sentence if he finds by a preponderance that you committed uncharged conduct. [though I doubt that this second point makes any difference as a constitutional matter]
If you find this situation disagreeable, then the problem is either (1) sentences generally are too long, (2) statutory offenses aren't specific enough, or (3) judges have too much discretion
Posted by: | Sep 6, 2007 12:03:11 AM
Thank you for a very clear and logical explanation. I can see why uncharged conduct could technically be used, though I'm not sure I believe that it should be. However, I still have a big problem with acquitted conduct, because my understanding of acquittal is that the jury is saying either I didn't do it, or the evidence doesn't prove beyond a reasonable doubt that I did it. For a judge to come back and say he/she thinks I did it anyway and adjust my sentence--even within the statutory limits-- seems to me indefensible. (I realize that is not an issue in this case._
Posted by: disillusioned layman | Sep 6, 2007 10:19:55 AM
