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August 1, 2008

Ninth Circuit Holds Lenient Sentence Does Not Rise to Abuse of Discretion

After pleading guilty to several counts of healthcare fraud, theft and money laundering, the defendant in United States v. Ruff, available here, a case decided today by the Ninth Circuit, was originally sentenced to 12 months and a day in prison and three years supervised release, with the recommendation that his sentence be served at a community corrections center where he could work, pay restitution and visit with his son.  After learning that the corrections center could only house the defendant if his confinement was as a condition of supervised release, the district court modified the sentence to one day of imprisonment and three years supervised release, with the condition that 12 months and a day of his supervised release be served at the corrections center.  The guidelines had recommended 30-37 months’ imprisonment for the combined offenses. The government appealed the modified sentence, claiming the modification overstepped the bounds of the sentencing court’s authority. 

The majority of the panel held there was no abuse of discretion by the sentencing court.  The court first recognized that the original below-guidelines sentence was reasonable in light of the mitigating factors recognized by the sentencing court pursuant to § 3553(a), and that the same factors justified the amended sentence, “because the only difference between the two sentences is one of meaningless semantics.” Citing the dissent’s discussion of Gall, the Court went on to recognize that

[t]he clear message in Gall, however, is that we must defer ‘to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.’ …  [I]t is the reasoned decision itself, not the specific reasons that are cited, that triggers our duty to defer. Here, the district judge plainly satisfied this requirement, relying on factors such as treatment, cooperation and familial support to arrive at his chosen sentence.

Judge Gould firmly disagreed in dissent.

The abuse of discretion standard of review is not a rubber stamp of all sentencing decisions made by a district court. Instead, it requires us to vacate a sentence when it is substantively unreasonable. Where ‘we have a definite and firm conviction that the district court committed a clear error of judgment’ in imposing a particular sentence, it is our duty to vacate the sentence as unreasonable. See SEC v. Coldicutt, 258 F.3d 939, 914 (9th Cir. 2001). Here, the reasons given by the district court to support its sentence do not warrant a one-day prison term, even given the condition of supervised release that Ruff spend twelve months and a day in a residential confinement facility. This sentence is a substantively unreasonable punishment for Ruff’s theft of more than a half-million dollars in inventory supplies from his nonprofit employer.

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

Judge Posner on the “Substantial Step” Requirement of Criminal Attempt

Although unrelated to sentencing, yesterday’s decision by Judge Richard Posner includes a noteworthy (and literary) discussion of what is required to convict an individual of criminal attempt.  In United States v. Gladish, the Seventh Circuit overturned the conviction of a 35-year-old man caught trying to solicit sexually a “14-year-old girl” (who was actually a government agent), but who never moved beyond speaking to the “minor” over the Internet.  In classic Posner prose:

You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. That something marks you as genuinely dangerous—a doer and not just one of the ‘hollow men’ of T. S. Eliot’s poem, incapacitated from action because

Between the conception

And the creation

Between the emotion

And the response

Falls the Shadow.

And later on in the opinion:

Treating speech (even obscene speech) as the ‘substantial step’ would abolish any requirement of a substantial step. It would imply that if X says to Y, ‘I’m planning to rob a bank,’ X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows.

Download UnitedStatesvGladish.pdf

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Eighth Circuit Upholds Constitutionality of the Sex Offender Registration and Notification Act

As discussed in this post on the Sex Crimes blog, the Eighth Circuit issued an opinion yesterday in United States v. May in which it upheld the constitutionality of the Sex Offender Registration and Notification Act (“SORNA”).  Although the defendant, who was charged with one count of failure to register as a sex offender in violation of SORNA, raised a host of constitutional challenges to SORNA, the Court rejected each. 

The district court found (1) SORNA applies to May, (2) SORNA’s retroactive application does not violate the ex post facto clause, (3) Congress did not improperly delegate legislative responsibility to the Attorney General in violation of the non-delegation doctrine, (4) application of SORNA to May did not violate May’s due process rights, and (5) Congress’s enactment of SORNA was a permissible exercise of its authority under the commerce clause. We affirm.

The Eighth Circuit’s decision is the first by a federal appellate court to decide whether SORNA is constitutional. 

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Jessica’s Law Applied Following Conviction in Maine

In the first application of  Maine’s Jessica’s Law after a trial, a man convicted of sexually-assaulting a 4-year-old girl was sentenced to 22 years in prison.  An article detailing the case notes that:

Assistant District Attorney Eric Walker said the sentencing was the first time Jessica’s Law was used in Maine after a trial. Like the federal version of Jessica’s Law, the state sentencing guidelines apply to instances of sexual assault of a person under 12.

There have been other sentences given in Maine under the law, but those were the results of plea agreements, Walker said. The law instructs judges to begin their deliberations with no less than a 20-year sentence, although they have the option of raising or lowering the sentence depending on the defendant’s background and other factors.

The government had recommended a 25-year sentence, with the defense asking for six years.

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard

In United States v. Avilés-Colón, the First Circuit yesterday held that crimes for which a defendant is not convicted – including murder – may be taken into account during sentencing when proven by a preponderance of the evidence.

While the defendants in Avilés-Colón were convicted of conspiracy to distribute and possess controlled substances and possession of firearms in furtherance of the conspiracy, the sentencing court employed a base offense level of forty-three after determining, under a preponderance of the evidence standard, that three murders had been committed in furtherance of the conspiracy.  After considering § 3553, the court ultimately gave each defendant a sentence below the life imprisonment dictated by the guidelines, sentencing one defendant to 660 months in prison and the other to 420 months in prison.

On appeal, one defendant challenged the constitutionality of applying the guidelines’ murder cross-reference when the facts underlying the sentence were proven only by a preponderance of the evidence standard.  The First Circuit swiftly rejected this “often raised argument” in one sentence, noting only that “even the heightened sentence does not rise above the statutory maximum.”

While enhanced sentences based on conduct for which a defendant was neither charged nor convicted are not uncommon, and the law here is entirely settled, this case shows how dramatic the potential effect of this principle can be.

[Note: Although the First Circuit states that the defendants were found guilty only of the two charges discussed above, the district court’s opinion indicates that one of the defendants was in fact convicted of murder.  It is unclear why this is not discussed in the First Circuit’s opinion but is seemingly irrelevant in that the defendant who unquestionably was not convicted of murder was the one who brought the constitutional challenge.] 

Download Aviles-Colon.pdf

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (18) | TrackBack

U.S. Biodefense Research Apparently Commits Suicide in Wake of Impending Charges in Anthrax Investigation

As reported by this Associated Press article and numerous other media outlets, Bruce E. Ivins, a U.S. biodefense researcher, apparently committed suicide as the Justice Department was preparing to file an indictment against him stemming from the 2001 anthrax attacks that killed five and sickened numerous others.  It is being reported that the government had planned to seek the death penalty against Ivins, who was said to have been informed of the impending prosecution.

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (7) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation. Posts by individual authors are signed by each author. Posts that result from a collaborative effort are signed by "Guest bloggers." We may be contacted at this address until Doug returns.

August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

July 31, 2008

Eleventh Circuit Holds That Procedural Sentencing Requirements Must Be Strictly Followed


              In an unpublished per curiam decision today (available here), the Eleventh Circuit made clear that judges must strictly adhere to the statutorily imposed procedural requirements of sentencing.  United States v. Narvaez involved a defendant who pled guilty and was sentenced to 210-month concurrent sentences for conspiracy to possess with intent to distribute and possession with intent to distribute five kilograms or more of cocaine while aboard a vessel subject to United States jurisdiction.  Although the Eleventh Circuit rejected both of the defendant’s substantive arguments on appeal (involving objections to the district court’s denial of a safety-valve reduction as well as its imposition of a two-level upward adjustment under § 2D1.1), it nonetheless remanded for resentencing because it found that the district court had not provided the reason for the sentence it imposed, as required by § 3553(c)(1).

Here, although the district court listened to the parties’ arguments relating toseveral of the § 3553(a) sentencing factors, it did not refer to § 3553(a) or any§ 3553(a) factor at all during the hearing. The district court did not even state that, after considering the § 3553(a) factors, a 210-month sentence was appropriate. Indeed, the district court gave absolutely no reason for imposing the 210-monthsentence. Instead, the district court ruled on Narvaez’s guidelines objections, calculated the advisory guideline range, stated it planned to impose a sentence within that range and then imposed a 210-month sentence. Accordingly, we vacate Narvaez’s sentence and remand the case to the district court for the sole purpose to permit the district court to comply with § 3553(c)(1) and provide an explanation in open court for the 210-month sentence. See United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (concluding that a district court that offered no reason for sentence did not satisfy its statutory duty imposed by § 3553(c)(1)).

            Although unpublished, the Eleventh Circuit’s decision sends a reminder to sentencing judges that the procedural requirements of § 3553(c)(1) must be followed, and that judges must do so explicitly, even if there is no reason to question whether they considered the § 3553(a) factors.

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July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Federal Defenders Paper on Acquitted and Uncharged Crimes

Amy Baron-Evans, who is the National Sentencing Resource Counsel at the Federal Defenders, has alerted us to a revised paper on "Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing," which she wrote along with Jennifer Niles Coffin, available on the Federal Defender website hereThis paper updates and expands the Federal Defenders' terrific work in this area, which Doug covered in this prior post:

    ·  Deconstructing the federal relevant conduct guidelines 

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July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Arizona Finds Success with Innovative Prison Program

This article from the Christian Science Monitor discusses the "Get Ready" program being used in Arizona's prison system.  The program seeks to prepare inmates for reentry into society beginning at the very outset of their incarceration by assessing their work and education needs and developing an individualized corrections plan within one week of entry into prison. Inmates receive additional privileges as they complete goals outlined in their assessment.  Education, workshops, and treatment programs are made available to inmates as part of the program.  The "Get Ready" program, which Arizona officials cite as significant reason for decreased violence inside state prisons, is a finalist for a Harvard Kennedy School innovations award.

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July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (3) | TrackBack

Add Prof. Tribe to those urging rehearing in Kennedy

Though I'm on vacation and really enjoying the work of the Guest bloggers, I had a bit of on-line time this afternoon and now I cannot resist spotlighting this morning's Wall Street Journal op-ed by HLS Professor Laurence Tribe's headlined "The Supreme Court Is Wrong On the Death Penalty."  Here are snippets:

Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle.  But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction.  Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings....

If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name.  So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire.  In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.

To be sure, holding the line at murder and treason gives the judiciary a bright line that blurs once one says a legislature may include other offenses in its catalogue of what it deems the most heinous of all crimes. But the same may be said of virtually any bright line.  Placing ease of judicial administration above respect for democracy and for principles of equal justice under law is inexcusable.

The Eighth Amendment's cruel and unusual punishment clause should not be construed in a manner that puts it on a collision course with the 14th Amendment's equal protection clause. The Supreme Court would do well to take that overriding consideration into account as it decides whether to revisit its seriously misinformed as well as morally misguided ruling.

Though Tribe seems more troubled by the result in Kennedy than by the Court's factual errors (as am I), adding his voice to the call for rehearing in Kennedy strike me as quite important.  So, to review, we now have the state of Louisiana (represented by prominent law professors from both sides of the political aisle), the US Government, the Washington Post editorial page, and Tribe all asserting that the Justices ought to take up the Kennedy case again. (Also, though not directly addressing the rehearing issue, both major Presidential candidates and a number of other prominent politicians also have suggested the Justices messed up In Kennedy). 

The hamonic consensus calling for rehearing in Kennedy reinforce a point I have made from the outset of the post-Kennedy debate: the Supreme Court's legitimacy, and not just the outcome in one high-profile case, is at stake in how it handles the rehearing question in Kennedy.

Some related recent posts:

July 31, 2008 in Kennedy child rape case | Permalink | Comments (6) | TrackBack

Seventh Circuit Rules Appellate Counsel "Deficient" For Failure to Raise Booker Claim

Just before Booker was decided by the Supreme Court (but several months after the Seventh Circuit had held that the mandatory guidelines were unconstitutional in the same case and the Supreme Court had granted certiorari), Brett Stallings was sentenced to 188 months’ imprisonment after being convicted of possession of a firearm by a felon.  At the sentencing hearing, the Judge appeared to follow the guidelines as if they were mandatory, stating “under the law, I believe I am required to impose a certain, at least minimum sentence.” Trial counsel did not object to the mandatory application of the sentencing guidelines.  Furthermore, the Judge rejected defense counsel’s suggestion to impose an alternative sentence, as Blakely was then under review by the Supreme Court.

On Stallings’ appeal (after the Supreme Court had issued Booker), his newly appointed attorney claimed ineffective assistance of trial counsel, but he did not make a separate claim under Booker that the sentence may have been different had the Judge viewed the guidelines as advisory. Stallings’ original sentence was affirmed.  Stallings thereafter filed a habeas petition, claiming that his appellate counsel was ineffective for failing to make the Booker argument and asking for a reconsideration of his sentence.

In a decision issued yesterday in Stallings v. United States, the Seventh Circuit agreed, holding that Stallings’ appellate counsel was ineffective for failing to request a limited remand “to determine whether the sentencing court would have imposed the same sentence under an advisory guidelines regime.”  The Seventh Circuit, however, ultimately remanded the habeas petition to the district court to determine if the failure to raise a Booker claim was prejudicial and would have actually resulted in a different sentence, since the district court failed to consider that issue in denying Stallings’ petition.

While there are unlikely to be many more cases involving Stallings' precise set of facts, the Seventh Circuit’s ruling underscores the critical importance of defense attorneys taking advantage of the new found flexibility under Booker and its progeny.

Download Stallings.pdf

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July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation. Posts by individual authors are signed by each author. Posts that result from a collaborative effort are signed by "Guest bloggers." We may be contacted at this address until Doug returns.

July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

July 30, 2008

More Circuit Activity About The Meaning Of “Victim” In § 2B1.1

            As previously discussed here, the Fifth Circuit held on Tuesday that the reimbursed credit card holders in a fraud conspiracy were not “victims” within the meaning of § 2B1.1 because the district court did not point to any evidence establishing their pecuniary loss.  Today, the Second Circuit ruled in United States v. Emmanuel Abiodun, et al. (available here) that individuals who are reimbursed by banks or credit card companies in the aftermath of a fraud scheme may qualify as “victims” for purposes of § 2B1.1 if there is evidence that they incurred a measurable monetary harm:

“We agree with the Sixth Circuit and Eleventh Circuit that individuals who are ultimately reimbursed by their banks or credit card companies can be considered ‘victims’ of a theft or fraud offense for purposes of U.S.S.G. § 2B1.1(b)(2) if—as a practical matter—they suffered (1) an adverse effect (2) as a result of the defendant’s conduct that (3) can be measured in monetary terms.”

            The wrinkle here is that the loss must be able to be measured in “monetary terms.”  In Abiodun, the Second Circuit agreed that “loss of time” in terms of “securing reimbursement from their banks or credit card companies” could be measured in monetary terms.  However, since the district court counted those who had lost time as victims for purposes of the enhancement without calculating the monetary value of this lost time, the court remanded so that the district court could “(1) recalculate the loss amount associated with each of the defendants’ crimes to include the time lost by these potential victims or (2) determine whether, if these individuals are excluded from the count, it is still ‘more likely than not’ that Abiodun’s crimes affected ‘250-plus victims.’”


            But just how easy is it to convert lost time into monetary terms under these circumstances? Must the court consider each affected individual’s respective salary, calculate his or her functional hourly wage, and then determine how much time he or she spent trying to get reimbursed? What is the monetary loss, if any, to an unemployed person?  What if the individual calls the credit card company on a weekend when he or she is not working?  How exactly do you value the monetary cost to a victim from lost “leisure time” spent dealing with a bank or creditor? Surely these questions will be the subject of future litigation.

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July 30, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (3) | TrackBack

Former NBA Referee Sentenced to 15 Months

As reported by The New York Times here, former NBA referee Tim Donaghy was sentenced on Tuesday to 15 months in prison by U.S. District Judge Carol B. Amon following his guilty plea to charges related to his role in a gambling ring that involved NBA games.  The article suggests that Donaghy, who faced a sentence of 27 to 33 months based on the federal guidelines, received a lenient sentence based on his agreement to cooperate with the investigation.  Donaghy was the last of the three defendants charged in the ring to be sentenced.  His co-defendants, James Battista and Thomas Martino, were sentenced last week to 15 months and 12 months plus 1 day, respectively. 

Tuesday's sentencing of Donaghy was the culmination of some interesting back-and-forth between prosecutors and defense attorneys in recent months over the extent of Donaghy's cooperation, as discussed in these prior blog posts by Doug Berman:

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July 30, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Senator Ted Stevens Indicted

As noted at the White-Collar Crime Prof Blog here and covered by numerous major media outlets, Senator Ted Stevens (R-Alaska) is in hot water.  According to the indictment and the DOJ press release Senator Stevens is facing seven felony counts of making false statements.  The charges relate to false statements that Stevens is alleged to have made on his mandatory financial disclosure forms filed for calendar years 1999 through 2006.  During the press conference, Acting Assistant Attorney General Matthew Friedrich refused to discuss Stevens' sentencing exposure, even to the point of not answering a reporter's question about the total statutory maximum sentence Stevens faced.  Another questioner asked whether Stevens' age would be a factor at sentencing.  Of course, under the guidelines, age is considered “not ordinarily relevant,” but after Booker some judges may take it into account, especially when combined with health issues (which the guidelines also consider “not ordinarily relevant”).

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July 30, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation.  Posts by individual authors are signed by each author.  Posts that result from a collaborative effort are signed by "Guest bloggers."  Please direct all questions and comments to us at this address until Doug returns.

July 30, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

July 29, 2008

Circuit split interpreting the term "victim" under USSG 2B1.1

Katie Gerber, a Summer Associate at Proskauer Rose, posts this summary of an interesting Fifth Circuit case decided recently:          

           The Fifth Circuit has issued an opinion interpreting the term “victim” under section 2B1.1(b)(2) of the Sentencing Guidelines in United States v. Conner (available here).  This opinion appears to reinforce a split in the Circuits on the Guidelines’ requirement that a “victim” suffer “actual loss” resulting from the offense.

            Conner was convicted of conspiracy and mail fraud in connection with a fraud scheme that utilized commercial credit accounts without authorization at various Home Depot, Lowe’s, and Sam’s Club stores.  Conner’s base offense level was increased by 4 levels pursuant to the district court’s finding that his offense involved between 50 and 250 “victims.”  The district court deemed each person whose account information was improperly used by the defendant to purchase goods to be a victim for purposes of § 2B1.1(b)(2)(B). On appeal, Conner argued, and the Fifth Circuit agreed, that the only victims of the scheme were the five credit companies involved, because the underlying account holders were fully reimbursed by those companies for all charges made to their accounts. 

            The majority opinion in the Fifth Circuit followed United States v. Icaza, 492 F.3d 967 (8th Cir. 2007), and United States v. Yagar, 404 F.3d 967 (6th Cir. 2005).  In Icaza, the Eight Circuit case involved a cross-country shoplifting spree at various Walgreen’s stores, and the Circuit determined that the only “victim” for purposes of § 2B1.1(b)(2) was Walgreen’s corporation, because none of the individual Walgreen’s stores “ultimately bore the pecuniary harm.”  Icaza, 404 F.3d at 970.  In the Yagar case, the defendant used stolen checks to deposit funds into accounts of over fifty individuals at five banks using stolen bank information, and then withdrew portions of those funds, receiving over $20,000 in cash.  The Sixth Circuit held that the underlying account holders were not “victims,” because “they were fully reimbursed for their temporary financial losses.”  Yagar, 404 F.3d at 971.

            The majority in Conner declined to follow the Eleventh Circuit’s decision in United States v. Lee, 427 F.3d 881, 884 (11th Cir. 2005).  There, the court determined that businesses that had been able to offset losses caused by the defendants’ wrongdoing, through the recovery of collateral or the return of money or property, nevertheless suffered a loss under the Guidelines and should be deemed victims for purposes of § 2B1(b)(2)(B).  Interestingly, the Lee court noted its disagreement with the Sixth Circuit, arguing that the court in Yagar overlooked the Application Notes in reading the “actual loss” provisions under the Guidelines.  Id. at 895.  The Eleventh Circuit pointed out that the Guidelines take into account an eventual recovery or return of lost money, property, or services to the victim by allowing the defendant to take credit against the total loss for the value of any recovery.  The Court reasoned that the Guidelines, therefore, inherently acknowledge that there was an initial loss to such victims, even when that loss is subsequently remedied.  Id. 

            In contrast with the majority’s view, Circuit Judge Garza sided with the Eleventh Circuit’s approach. He criticized the majority’s analysis, arguing that it “runs counter to the fundamental sentencing goal of tying the severity of a defendant’s sentence to the seriousness of the defendant’s crime.”  Id. He offered the following illustration:

Compare a defendant who defrauds 1,000 individuals that, after the fact, have their losses reimbursed by a single insurer and a defendant who defrauds 10 uninsured individuals.  Assuming an equal amount of loss, there can be no doubt that the first defendant’s crime is more serious and therefore deserving of a more serious sentence.  The majority’s interpretation of victim enhancement leads to the incongruous result of the second defendant receiving the higher Guidelines range. 

            The significance of this debate among the Circuits over the meaning of the term “victim” in § 2B1.1 remains to be seen.  But as the majority in the Fifth Circuit expressly acknowledged, the large number of individual account holders affected by Conner’s crime could be considered in any event under the factors in 18 U.S.C. § 3553(a) if the court decides to issue a non-Guidelines sentence on remand.

Katie Gerber

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (4) | TrackBack

Government Responds To Heller Motion

A helpful reader alerted us that the government has responded to at least one motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment.  As previously summarized here, a hearing on this very motion has been scheduled for later this week.  Here is a snippet from the government's response:

            The Heller Court held that the relevant provisions were unconstitutional as applied in the context of banning handguns that are possessed in the home for the purpose of self-defense, but did not wholly invalidate the registration and licensing scheme. 

            Significantly, the Court specifically noted that the right secured by the Second Amendment is "not unlimited."  Heller, slip op. at 54.  The Court acknowledged, for example, that prohibitions on carrying concealed weapons have been deemed lawful under the Second Amendment.  Id.  Of particular significance to the matter presently before this Honorable Court, the Heller Court also emphasized that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."  Id. at 54-55.  And the Court specifically noted that those "presumptively lawful regulatory measures" were just examples, and that the list provided was not "exhaustive."  Id. at 55 n.26.  In addition, the Court limited the sorts of weapons protected by the Second Amendment to those "in common use," Id. at 55, and noted that the Second Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 53.

Download government_response.pdf

Guest Bloggers

Some related posts on this case:

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Former Newark, NJ Mayor Sentenced to 27 Months

As highlighted in this NY Times article, Former Newark, NJ mayor Sharpe James was sentenced today to 27 months in prison and ordered to pay a $100,000 fine for his April conviction on corruption charges.  James was found guilty of fraud and conspiracy stemming from his failure to disclose his relationship with co-defendant, and former girlfriend, Tamika Riley, who obtained city council and mayoral approval on multiple purchase contracts for land in Newark.  Over a four-year period Riley purchased nine city-owned tracts of land for $46,000 and resold them within short time periods for $665,000.  Riley, who was earlier convicted on charges of fraud, conspiracy, tax evasion and lying about her income, was sentenced to 15 months in prison and ordered to pay $27,000 in restitution.

According to these reports, James faced a possible sentence of 12 to 15 years under the guidelines, but prosecutors sought up to a 20-year sentence.  At the hearing today, defense attorneys asked the Judge to limit the sentence to probation.  While District Judge William Martini refused the defense position, noting that it was a "sad day for the citizens of Newark who are disappointed in the conduct of the mayor," he was particularly critical of the prosecutors, calling their position "shocking" and "lacking any basis in fact."  Judge Martini noted that the city of Newark did not lose anything of monetary value, but had lost James' "honest services."  In response to the prosecutor's argument that James' administration had often operated in a corrupt manner, Judge Martini indicated, "Don’t talk about a history of corruption unless you can prove it.  I don’t want to hear these allegations of a corrupt administration, he’s all-powerful, didn’t do any good.  I’m supposed to throw out the history of a man’s life for misconduct he committed at age 69?”

Based on the article, it is not clear whether Judge Martini exercised some form of discretion to go so far below the guidelines, or whether he simply found that the factual predicates for such a sentence had not been met.  The U.S. Attorney's Office, unsurprisingly, immediately announced its intention to appeal to the Third Circuit.

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UPDATE: These publicly-available documents, which include the government’s sentencing memorandum as well as select responses from the defense, provide insight into the arguments advanced on the sentencing issues by both sides:   

Download sharpe_james_sentencing_memorandum.pdf

Download defense_letter_of_july_22.pdf

Download defense_letter_of_july_24.pdf

Guest bloggers

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (11) | TrackBack

Eighth Circuit Affirms A Sentence of Probation For A Major Crack Dealer

The Eighth Circuit recently issued a decision (available here) holding that a significant downward variance was appropriate for a defendant who pleaded guilty to distributing 102 grams of crack cocaine.  The defendant’s serious health conditions, along with extraordinary post-arrest rehabilitation, were apparently sufficient reasons to grant him a three-year term of probation in the form of home detention, rather than a sentence within a guidelines range of 60 months in accordance with the statutory maximum.  Here is a snippet of the Court’s decision:

            The district court sentenced the defendant on March 22, 2007 to a three year term of probation to be “served” at the City of Faith facility in Little Rock, Arkansas.  The court ordered that the defendant could leave that facility for employment, to participate in church activities and to attend family events such as birthday parties.  However, after his placement at the City of Faith commenced, that placement was terminated by City of Faith due to its inability to handle the defendant’s medical needs.  On September 18, 2007, the district court modified the defendant’s probation conditions, pending the outcome of this appeal.  The court placed him on home detention, allowing leave for medical care, mental health appointments, to meet with his attorney, and to attend church.

            The record reveals that the defendant was 56 years old at the time of sentencing.  He had undergone multiple heart surgeries in 2005 and 2006.  In 2007 he received graft bypass surgery in his lower right leg.  The defendant suffers from severe coronary artery disease, severe peripheral vascular disease, asthma, and other serious conditions.  A letter submitted by his physician opines that defendant's life expectancy is from ten to twenty years less than the average African American male.

            The sentencing record also shows that the defendant was taking eleven prescription drugs and multiple forms of eye drops.  He has been diagnosed in the past with post-traumatic stress disorder, anxiety and depression.  The defendant weighs 310 pounds.  He suffers from sleep apnea, high blood pressure, gout, diabetes, a nerve root disease, asthma and bronchitis.  His addiction to pain medication contributed to the criminal activity alleged in the indictment.

            As highlighted in a post here and in a recent issue of the Federal Sentencing Reporter summarized here, the Supreme Court’s decision in Gall paved a similar way for former Wal-Mart executive Thomas Coughlin, who was sentenced to 5 years of probation and 27 months of home detention with an electronic monitoring device based in large part on his health.  While some may find such extensive health departures to be controversial, the Eighth Circuit’s case is proof that departures on these grounds are available to all, regardless of the type of offense, as they should be.

Guest bloggers

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

President Bush OKs Military Execution

As detailed in this NY Times article, President Bush recently made history by approving the first execution by the military in nearly 50 years:

As commander in chief, the president has the final authority to approve capital punishment under the Uniform Code of Military Justice, and he did so on Monday morning in the case of Pvt. Ronald A. Gray, convicted by court-martial for two killings and an attempted murder at Fort Bragg, N.C., the White House said in a statement.

Although the Supreme Court upheld the constitutionality of the death penalty in the military in 1996, no one has been executed since President Ronald Reagan reinstated capital punishment in 1984 for military crimes.

The last military execution was ordered by President Dwight D. Eisenhower in 1957, although it was not carried out by hanging until 1961.  President John F. Kennedy was the last president to face the question, in 1962, but commuted the sentence to life in prison.

* * *

Mr. Bush, a supporter of the death penalty, approved the sentence after Private Gray’s case wound its way through the Army’s legal bureaucracy and the military’s courts of appeal.  The secretary of the Army sought Mr. Bush’s final approval.

There are six people on the military’s death row at Fort Leavenworth, Kan. but Private Gray was the first whose sentence went to the president.  Unlike in the civilian courts, where the president can overturn or commute a sentence, in the military system, he is required effectively to approve it.

It can still be appealed, which the White House suggested was all but certain, meaning an execution is not expected to occur soon, possibly not during Mr. Bush’s remaining months in office.

The article does not explain why it has taken nearly 20 years for the case to work its way through the military justice system—even longer than the average civilian death penalty case—or how much additional process may still follow.  Readers are invited to share their knowledge in this area.

Guest bloggers

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (5) | TrackBack

Will the Supreme Court Rehear Kennedy v. Louisiana?

As discussed by SCOTUSblog here, the DOJ on Monday asked the Supreme Court to rehear the case of Kennedy v. Louisiana, in which the Court struck down Louisiana's law permitting the death penalty for child rape.  As discussed in a prior post found here, the Court's ruling failed to take account of a federal law in the military justice system authorizing the death penalty in that instance.  The DOJ's request comes one week after Louisiana also requested the Court to rehear the case.

Guest bloggers

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (3) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation.  Posts by individual authors are signed by each author.  Posts that result from a collaborative effort are signed by "Guest bloggers."  Please direct all questions and comments to us at this address until Doug returns.

July 29, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

July 28, 2008

Defendants Receive A (Short-Lived?) Benefit From A "Judicial Gaffe"

After Francis Lawrence and his co-defendants successfully filed motions to reduce their sentences under the retroactive sentencing guideline reductions for crack cocaine offenses, the district court—apparently inadvertently—included language in the sentencing orders that converted each sentence into “time served.”  Within a few weeks after realizing its error, the court modified the orders to correct the language.  The defendants appealed, challenging the court’s authority to substantively modify their sentences outside of the seven-day window permitted by Federal Rule of Criminal Procedure 35. 

A Seventh Circuit panel now vacates the amended sentence, ruling that because the error was not “clerical” under Rule 36 (which would otherwise allow unlimited time to correct clerical errors), the Judge could not amend the order past the deadline.  But while victory for the defense is sweet, it also may be temporary.  The Court, in a thoughtful decision available below, practically invites the government to file an appeal from the original, mistaken sentence:

The government has 30 days after the entry of the order being appealed to file a notice of appeal with the district court.  Fed. R. App. P. 4(b)(1)(B).  Here, the government’s time to file a notice of appeal had not yet expired, when, on March 26, the district court sua sponte entered new orders.  At that point, the government had no reason to appeal the original orders because the orders had been superseded by sentences that presumably no longer fit within the appealable conditions specified by § 3742(b). . . . Now that the sentences of Nos. 08-1856, 08-1857, 08-1858, and 08-1862 13 March 4, 6, and 13 are at issue again, it would not seem to run afoul of the cross-appeal rule or undermine the interests of fair notice and finality to permit the government to file notices of appeal within the remainders of the 30-day time periods that had not expired as of March 26. If the government chooses to appeal, the district court should consider whether the defendants should be detained pending the appeals pursuant to 18 U.S.C. § 3143(c).  Any such appeals should be returned to this panel as successive appeals under Operating Procedure 6(b).

Is this judicial time well spent, or an example of being slave to good procedure?

Download USA v. Lawrence.pdf

Guest bloggers

July 28, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (15) | TrackBack

Fifth Circuit Mostly Affirms in Controversial Border Agents Case

As previewed in this post, a Fifth Circuit panel today decided the appeals of U.S. Border Patrol agents Ignacio Ramos and Jose Alonso Compean, who were sentenced to prison terms of 11 and 12 years, respectively, for shooting an illegal alien drug smuggler.  While the Court's ruling (found here) vacates the agents’ convictions on five counts relating to obstruction of justice, it leaves untouched their mandatory 10-year terms for using a gun in relation to the commission of a crime of violence.  The Court's roadmap is excerpted here:


           On appeal, we will address some of the errors, legal and evidentiary, alleged to have been committed by the trial court. Many arguments are made by the agents. We will address their primary arguments and we will find merit in some. Accordingly, we will reverse and vacate the convictions on some counts and vacate the sentences on those counts. However, this may not be of much moment to Ramos and Compean because we leave the major conviction with the major sentence—18 U.S.C. § 924(c)—untouched.

            In this prefatory statement we should note that the rather lengthy sentences imposed on the defendants—eleven years and a day and twelve years respectively—result primarily from their convictions under § 924(c). Why? Because Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence. The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under this statute, the district court had no discretion but to impose at least a ten-year sentence. Thus, the sentences in this case reflect the mandatory ten years for violation of § 924(c), and one year and a day and two years, respectively, for the remaining several convictions.

            The defendants were convicted for assault, discharge of a weapon in the commission of a crime of violence, tampering with an official proceeding, and deprivation of civil rights. We AFFIRM all convictions except those for tampering with an official proceeding, which we VACATE. We REMAND for resentencing.

With the Court unable to budge on these lengthy mandatory minimums, perhaps we can expect this case to join the backlog of pardon petitions now pending before President Bush.  There is nothing quite like bipartisan support to spur much needed sentencing reform.

Guest bloggers

July 28, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

Practitioner’s Notes: Caught Between a Rock and a Hard Place

In a recent post found here, it was noted:  “It has long been the practice at sentencing that prosecutors stress the awfulness of the offense and defense attorneys stress the not-so-awfulness of the offender.”  But what is the defense attorney to do when her client pleads guilty, perhaps even cooperates, and the PSR gets the “awfulness” of the offense wrong?  I’m not talking about simple, black and white errors, but when things are shaded in a way that makes your client seem materially worse than is justified. 

Probation Officers, whose fields of expertise generally lie elsewhere, frequently rely on others to prepare the PSR’s offense conduct section.  This is a particular problem when complex financial crimes are involved.  Usually, it’s the prosecutors who draft the offense conduct.  Hardly an independent source, but often, sadly, the most reliable from the Probation Officer’s perspective.  Often, the offense conduct is based at least in part on unsworn and unconfronted statements of (other) cooperators, who have an incentive to paint your client in the worst possible light.  The worst I’ve seen was a PSR that copied as its offense conduct, verbatim, the victim-bank’s investigation report, which was prepared in anticipation of the civil fraud lawsuit the bank intended to file against the defendant.  So a thirty-page offense conduct section comes out in the draft PSR and, all of a sudden, your client orchestrated everything, was the mastermind of every sneaky scheme in the book, recruited – nay, forced – subordinates into the conspiracy, and so on.  What do you do?  Do you challenge the PSR or ignore it? 

Neither solution seems perfect.  Taking on the PSR is fraught with danger.  Assuming you cannot convince the Probation Officer to revise the report, you end up spending the sentencing hearing, or at least a substantial portion of it, focusing the Judge’s attention on exactly the facts on which you do not want her attention focused.  Humanizing your client is one of the most important, if not the most important, responsibilities of a defense attorney at sentencing.  A pitched battle over the exact nature of your client’s wrongdoing hardly achieves that goal.  You also risk getting the prosecutor’s back up.  Plus, even if you did want to take on the PSR, how?  Again, the question generally arises in a plea scenario, where there is no trial record.  Attorney proffers aren’t effective.  Calling other witnesses, even if the Judge would give you such latitude, invites a he-said-she-said debate that may not lead to any answers.  Calling your client to the stand risks several potential disasters.  Will he stand up to cross-examination?  Will he lose credit for acceptance of responsibility?  Or, simply, will he be viewed unfavorably by the Judge for any of a host of reasons?

On the other hand, ignoring the devastating description of your client seems an equally poor choice.  You may convince the Judge that your client is deserving of sympathy – he has terrible family circumstances, is a leader of his community, gave to charity, donated a kidney to save a stranger’s life, and spends Saturday afternoons helping little old ladies cross the street – but it is unlikely to do much good.  All the Judge hears is “blah, blah, blah” because she’s read the PSR, which lays out how he masterminded this terribly corrupt scheme, involving thousands of corrupt acts over years and years.

I suppose the answer in part depends on the Judge.  Is this the type of Judge who will review the PSR carefully, and be so focused on the offense conduct that your sympathetic arguments will fall on deaf ears, or is the Judge someone who will care more about what type of person the defendant is?  Changing the system so that the PSR isn’t written by the plaintiffs’ class action lawyers or other biased, self-interested parties also seems like a worthwhile goal.  But in the meantime, it still strikes me as being caught between a rock and a hard place.

Matthew Queler

Proskauer Rose

July 28, 2008 | Permalink | Comments (9) | TrackBack

Is Booker Heading to Minnesota?

This interesting article discusses the plight of Minnesota judges forced to sentence within a strict state guidelines regime.  Sound familiar?  Here are some excerpts describing the system and its shortcomings:

The system is split into 11 levels.  The lowest levels are for the least severe crimes -- making threats or assaulting a police horse, for example.  The highest levels are for the most severe crimes, such as murder.  The system also takes into account a criminal’s history.  Each time a criminal is convicted of a crime, he is assigned points.

Judges plot a criminal’s point score with the crime level to find the appropriate sentence.  The grid provides judges a fixed range for jail time.

* * *

Judges can depart from the grid, but a separate jury trial must be held to find sufficient aggravating factors or the defendant must agree to let the judge depart.  Once a departure has been made, the judge must then file a report to the commission detailing reasons for departure.  Judges say departures are increasingly rare, partly because the jury trials they require are cumbersome and partly because of budget cuts to the state judiciary.  Judges departed from the guidelines in no more than 15 percent of cases between 1981 and 2006, according to the commission.

The complaints in Minnesota that the grid does not properly account for variations within the same classes of crimes are similar to those heard in the federal system before Booker.  If Minnesota's response to Blakely was to require a jury trial before a judge could depart from the grid, do these complaints suggest that even that system is too inflexible?  Will Minnesota's sentencing experiment survive, or is it proof that Booker's remedy really was a good alternative?

Guest bloggers

July 28, 2008 in State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Great Britain Embarks On U.S.-Styled Reforms

Looks like some interesting developments in sentencing law are underway across the pond.  Rumor has it that Harriet Harman, the Commons Leader in Great Britain, will propose striating the country's homicide laws to enable prosecutors to charge defendants with varying degrees of either murder or manslaughter.  Here is an outline of the proposed reforms:

Instead of only being able to charge defendants with either murder or manslaughter, prosecuting authorities may be able to choose from a wider range of options.

These would include first-degree murder, where the offender intends to kill; second-degree murder, where the offender intends to cause serious harm but causes death; and manslaughter, for cases involving negligence or the intention to cause some but not serious harm, which result in death.

Scores of killers who are now charged with manslaughter would no longer be able to escape a murder charge.  The new plans also signal the end of the mandatory life sentence for all murderers, a regime that dates back to the abolition of the death penalty more than 40 years ago.

Under the changes, while first-degree murder would carry a mandatory life sentence, judges in cases of second-degree murder would have the discretion to impose a fixed-term sentence.

"The aim is to be tougher but also give prosecutors more flexibility over charging and courts more flexibility over sentencing," a government source said.

The new category of second-degree murder would, for example, be likely to catch terrorists who planted a bomb or poisoned supermarket food but gave a warning in which they said they did not intend to kill.  Currently they could only be convicted of manslaughter.

Guest bloggers

July 28, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

An Urban Bias in Massachusetts' Drug-Free Zone Law?

As detailed in this press release, FAMM reports that Massachusetts' drug-free zone law may be leading to increased punishment for minorities and the poor who reside in urban areas.  The law in question currently imposes a two-year mandatory minimum sentence for offenders convicted of certain drug crimes within 1,000 feet of school property.  FAMM suggests that in densely populated urban areas, where schools and people are packed closely together, the law effectively transforms the entire urban area into a drug-free zone, and punishes drug offenses occurring in urban areas more harshly than the same offenses occurring in suburban areas.  Here is a relevant excerpt:

Families Against Mandatory Minimums (FAMM), a national, nonpartisan organization working for fair and proportional sentencing laws, says that Massachusetts is not alone in confronting problems caused by mandatory minimum drug and drug-free zone laws.  "This report provides yet more evidence of the unintended -- yet very harmful -- consequences of well-meaning but counter-productive legislation.  Massachusetts' joint Judiciary Committee understands the issue, as it recently filed House Bill 5004, which would reduce the size of school zones and eliminate the mandatory minimum sentence for first time offenders.  We strongly support these Committee proposals, which would protect public safety while ensuring fair and proportionate sentences," said Barbara J. Dougan, director of the Massachusetts FAMM project.  "Reform of drug and drug-free zone laws could save the state millions in corrections costs and reduce the human and fiscal waste of mandatory minimum drug sentences," said Dougan.  "FAMM welcomes the opportunity to work with the Patrick Administration and legislators to this end."

Massachusetts' drug-free zone laws require a two-year mandatory minimum sentence for those convicted of distributing or possessing with intent to sell drugs within 1,000 feet of school property, or 100 feet of parks or playgrounds.  The report shows that 1,000 foot zones are so large that most drug activity within them has nothing to do with children.  When an entire urban area becomes a drug-free zone, the law has no deterrent effect.  Instead, it punishes drug offenses occurring in urban areas more harshly than the same crimes committed in rural or suburban communities.

"The report illustrates the shameful racial disparities that result from drug-free zone laws.  People of color are hit hardest.  Urban residents are five times more likely to be subject to these laws.  According to the Massachusetts Sentencing Commission, a staggering 81 percent of those convicted of zone violations were African-American or Latino," said Dougan.

Guest bloggers

July 28, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

Guest Blogging

Dear Readers:

We are thrilled to be guest blogging at Sentencing Law & Policy during Doug Berman's great two-week vacation and voyage out to sea. We are criminal defense attorneys at the firm of Proskauer Rose. We share a special interest in the world of sentencing, both as defense lawyers and as commentators. We are also great fans of the criminal law blogosphere, which unites academics, practitioners, politicians, jurists, and others interested in the field of criminal law and policy and encourages them to share their insight and experience.

Our hope as guest bloggers is to help narrow the gap between the law and policy of sentencing on the one hand, and the community of practicing attorneys on the other. In this role, we will continue to deliver the latest sentencing news, as well as provide some perspective into sentencing from the viewpoint of practitioners. As part of this effort, we plan to host a column dedicated to exploring the views from the field, with the hope of sparking meaningful debate among our fellow practitioners. This blog relies on your loyal readership and thoughtful comments. Please send any suggestions to Mark, Matt, Anna, or Jenn at the e-mail addresses listed below. We look forward to hearing your thoughts on the many important sentencing issues to come.

Mark D. Harris (mharris@proskauer.com)

Matthew S. Queler (mqueler@proskauer.com)

Anna G. Kaminska (akaminska@proskauer.com)

Jennifer O'Brien (jeobrien@proskauer.com)

The views expressed in this blog are those of the authors alone and do not necessarily reflect the views of Proskauer Rose LLP.

July 28, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (7) | TrackBack

July 27, 2008

2008 Holiday road....

I am about to make like Clark Griswold and head out on the road (and on the sea) for a few weeks.  I expect (should I say fear?) that I will not have an ability to be consistently on-line and bloggy during my sojourn.  Though I surely won't be able to stay away from the computer the whole time, I may just try to go cold-turkey on blogging in this space for my two weeks away.

Joyfully, I can report that a terrific group of lawyers from Proskauer Rose (with whom I worked pro bono on this amicus brief in the Sixth Circuit en banc case involving acquitted conduct) have agreed to keep this blog warm while I am away.  Proskauer partner Mark Harris had the good sense to urge me to take a blogging hiatus while on the road, and he sensibly suggested that a group of sentencing practitioners could provide a valuable perspective on the usual sentencing subjects and suspects while I am away. 

I believe the Proskauer team will start their guest blogging tomorrow, and I am already looking forward to seeing how they make use of this space.

July 27, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (3) | TrackBack

"Should juries know the likely sentence when deciding guilt?"

The title of this post is the title of this interesting BlueOregon post authored by Oregon state representative Chip Shields.  The post begins with a review of the remarkable Rodriguez mandatory sentencing case (previously blogged here and here) still working its way through the Oregon state courts.   But it ends with Rep. Shields setting out this legislative history and some provocative questions:

I trust juries, so in 2005, Sens. Carter, Gordly and I introduced HB 2986, which gives jurors information on the likely sentence the courts will impose upon a finding of guilt.  It died for lack of a hearing in the then Republican-led Oregon House.

I've been thinking of reintroducing that bill, so I checked in with one well-respected constitutional scholar on the issue.  I haven't gotten his okay to use his name yet, but he wrote back:

As a general proposition, I believe that all human beings should be as fully informed as possible about the consequences of all of their actions before they undertake those actions.  Before you put your hand on that hot stove, you should understand that you might get burned.  Before you jump into the Clackamas River at High Rocks, you should understand that you might drown in a whirlpool.  Before you get on TriMet without a ticket, you should be aware of the penalty if you get caught.  And before a jury decides to do X or Y or Z, its members should understand the results that could flow from that decision.

We all want as much information as possible about the consequences of our actions; why shouldn't we give a jury as much information as possible about the consequences of theirs?

So what do you think?  Should [defendants have juries know] they would be sentenced to [long prison terms if convicted]?  Or is justice best served by keeping that information from them and having juries only decide guilt or innocence?

Related posts on the Rodriguez case:

July 27, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (38) | TrackBack

New federal bill seeking to restore some felons' gun rights

Because I expect continued litigation and uncertainty about felon gun rights in the wake of Heller, I am very pleased to discover this new press release indicating that at least one member of Congress is eager to address these matters head-on through new legislation (with the backing of the National Rifle Association).  The press release comes from the office of US Congressman Bart Stupak from Michigan, and here are excerpts:

U.S. Congressman Bart Stupak (D-Menominee) has introduced legislation to restore the gun rights of individuals convicted of minor, non-violent crimes.  H.R. 6622, the Second Amendment Restoration Act, ensures states have the discretion to restore individuals’ gun rights after conviction of minor crimes.  The National Rifle Association (NRA) endorsed the legislation this week.

“The Second Amendment provides for the right to bear arms and individuals should not forfeit that right due to convictions for minor crimes,” Stupak said.  “I appreciate the support of the NRA as I attempt to clarify that individuals convicted of minor crimes decades ago should not be subject to lifetime bans on gun ownership.”...

The issue was brought to Stupak’s attention by a constituent who, now in his mid-50s, was convicted in 1971 of entering a non-occupied building.  He was 18 at the time and the building was a deer camp.  He completed his probation in 1972.  In 2003, he applied to the county gun board to have his right to own a firearm restored.  But because the 1971 crime he was convicted of was a minor, non-violent crime, he is still denied the right to own a handgun under Michigan law and therefore no gun rights can be afforded to him. 

The NRA's letter of support for the Second Amendment Restoration Act is available at this link.  The NRA letter includes these notable sentences:  "To be absolutely clear, the NRA believes it is both constitutional and appropriate to disarm convicted felons.  However, we also believe that no person should lose the right to arms due to convictions for minor, non-violent crimes, especially those that occurred many years in the past."

This effort to restore some felon gun rights and the endorsement of the NRA strikes me as quite notable and important.  Moreover, because these matters will be subject to lots of constitutional litigation in the wake of Heller, Congressman Stupak should be lauded for trying to get out in front of these issues through legislation.  I hope other members of Congress will see the good sense of a bill like this in the wake of Heller.

Some related post-Heller posts:

July 27, 2008 in Second Amendment issues | Permalink | Comments (19) | TrackBack

The capital punishment company we keep

As various US states get back into the execution business in recent months, this new CNN article about executions in another nation provides a reminder of some of the capital punishment company we keep:

Twenty-nine people convicted of various crimes, ranging from murder to being a public nuisance while drunk, were hanged in Iran, state TV said. Iran's semi-official Fars News Agency reported earlier that 30 people would be put to death. It was not immediately clear if the last person's life was spared.

The Iranian judiciary's statement said that all 30 were convicted of various crimes, which included: murder, murder in commission of a crime, disturbing public safety and security, being a public nuisance while drunk and being involved in illegal relationships -- relationships between men and women who are not married to each other.  Kidnapping and using weapons while committing a crime were also among the charges.

The statement also said that 20 of the convicts were convicted of drug and alcohol dealing, armed robbery and smuggling arms. The judiciary statement said that the convicts had their cases tried by the highest judicial authorities and were found guilty of the charges brought against them.  The verdicts were final with their sentences carried out on Sunday.

The judiciary said the hangings should serve as a warning to those who are contemplating committing such crimes, the agency reported....  According to Amnesty International, Iran executed 317 people last year, second only to China's 470.

Interestingly, the last few paragraphs from the CNN report includes a description of Iran's latest anti-crime campaign that sounds quite similar to press releases we regularly see from American law enforcement officials (excepty for the adultry part):

Iran's government launched a campaign March 20 to increase public security and bring the crime rate down. Police cracked down on alleged drug dealers, whom they called criminal gang members, and alleged habitual criminals who use guns in the commission of their crime.  Alleged weapons smugglers and people who break social and religious laws, including adulterers, were also targets.

July 27, 2008 in Sentencing around the world | Permalink | Comments (22) | TrackBack