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August 8, 2008

Goodbye from the Guest Bloggers

Today is our final day of guest blogging for Sentencing Law and Policy. We thank everyone for reading our posts, and for offering invariably thoughtful and incisive comments.  We were glad to see that some of our posts sparked interesting and spirited debate.

Most important, we thank Doug Berman for giving us this wonderful opportunity and for trusting us with his baby. When we started this adventure, we knew we were setting out to do the impossible – to try to fill Doug’s shoes. After two weeks, we are even more daunted. We simply do not know how he does it day after day. Our entire team needs a long vacation. Doug, any suggestions?

Mark, Matt, Anna, and Jenn

August 8, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (3) | TrackBack

Practitioner’s Note: Acquitted Conduct in the News (Again)

The use of acquitted conduct as a basis for enhancing punishments remains the sentencing issue that won’t go away.  A spate of recent decisions and articles once again brings to the fore the controversy over a practice that already once reached the Supreme Court – where, in United States v. Watts, it was approved – at a time when the guidelines were still mandatory.  The August edition of the ABA Journal, here, prominently features Doug Berman, who is quoted as stating that the constitutionality of the practice has been called into question anew by the Court’s more recent sentencing decisions.  The article discusses United States v. Hurn, a case in which a drug defendant’s guideline exposure was raised from 27-33 months to 16-20 years on the basis of distribution counts of which he was acquitted.  The Supreme Court denied the cert petition, which Doug helped draft.

An article in The Washington Times, here, highlighted another recent decision on acquitted conduct, this one before the Eighth Circuit.  In United States v. Canania, the defendants were convicted of methamphetamine-related offenses and acquitted of possessing a firearm in furtherance of a drug-trafficking crime.  The district court, nevertheless, enhanced their sentences for the gun possession.  Judge Myron H. Bright wrote a separate concurring opinion in order to express his “strongly held view that consideration of ‘acquitted conduct’ to enhance a defendant’s sentence is unconstitutional,” and to urge the Supreme Court to promptly re-examine its continued use.  Judge Bright asked, rhetorically, “what might the man on the street think” of such a practice?  In a footnote, he answered his own question with the remarkable story of a recent trial in Washington, D.C., in which federal prosecutors sought a 40-year sentence against a drug defendant despite the fact that he was acquitted on every charge except a single $600 half-ounce sale of crack cocaine that occurred seven years earlier.  When one of the former jurors on the case learned of the prosecutors’ request, he wrote a letter to the judge, asking: “What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the [U.S. Attorney’s Office] would have liked them to have been found guilty.”

The question of what the man on the street would think raises the possibility of a different kind of challenge to the use of acquitted conduct, one that focuses not on the Constitution, but on Section 3553.  That provision, among other things, requires all sentences to be judged against the enumerated statutory purposes of punishment, which expressly include promoting respect for the law and providing just punishment for the offense.  In certain cases, as the Washington, D.C. juror story demonstrates, a sentence based substantially on acquitted conduct may well promote disrespect for the law, and thereby violate Section 3553.  Doug and a group of Proskauer lawyers (including myself) made exactly this argument in an amicus brief filed with the Sixth Circuit in the case of United States v. White.  The Circuit heard argument en banc on June 4, and a decision is pending.

As the ABA article mentions, if the Sixth Circuit finds that the district court erred in the use of acquitted conduct, it is likely the Supreme Court will have to review the issue again.  Either way, the controversy will likely continue.

Download Canania.pdf

Mark Harris

Proskauer Rose

August 8, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (12) | TrackBack

Four Former National Century Financial Enterprises Executives Sentenced

National Century Financial Enterprises (NCFE), based in Dublin, Ohio, was one of the largest healthcare finance companies in the United States until it filed for bankruptcy in November 2002. According to press reports, investors were bilked out of approximately $2.9 billion through a scheme by its top executives, who were convicted by a jury in March on charges of conspiracy, securities and wire fraud, and money laundering. According to a Marketwatch article, the following former NCFE executives were sentenced this week for their roles in deceiving investors as to the financial health of NCFE:

Donald H. Ayers, 72, of Fort Myers, Fla., NCFE vice chairman, chief operating officer, director and owner of the company, was sentenced on Aug. 6, 2008, to 15 years' imprisonment.

Randolph H. Speer, 57, of Peachtree City, Ga., NCFE's chief financial officer, was sentenced on Aug. 6, 2008, to 12 years' imprisonment.

Roger S. Faulkenberry, 47, of Dublin, a senior executive responsible for raising money from investors, was sentenced on Aug. 7, 2008, to ten years' imprisonment.

James E. Dierker, 40, of Powell, Ohio, associate director of marketing and vice president of client development, was sentenced on Aug. 7, 2008, to five years' imprisonment.

Additionally, Rebecca S. Parrett, 59, of Carefree, Ariz., an NCFE vice chairman, secretary, treasurer, director and owner of the company, has yet to be sentenced, as she has been a fugitive since the March 2008 jury verdict. She faces a maximum penalty of 75 years' imprisonment and a $2.5 million fine.

Guest bloggers

August 8, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (5) | TrackBack

Former Refco Inc. President Tone N. Grant Sentenced to 10 years

Former Refco Inc. President Tone N. Grant was sentenced Thursday to 10 years in prison for his role in the company's collapse, covered here. According to the article, defense lawyers for Grant, a former Yale University quarterback and decorated Marine officer in Vietnam, sought a 3 1/2 year sentence. Prosecutors had asked for a sentence similar to that of former Refco Chief Executive Officer Phillip Bennett, who pleaded guilty and was sentenced last month to 16 years behind bars.

Download tone_grants_sentencing_memorandum.pdf

Download governments_sentencing_memorandum.pdf

Guest bloggers

August 8, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (7) | TrackBack

Practitioner's Notes: California to Integrate Prisons (At Last)

As recent news articles have described, here and here, the State of California Department of Corrections and Rehabilitation (CDCR) has finally taken tentative steps toward integrating its prisons.  For many years, California had been one of the only states to acknowledge using race to segregate prisoners.  Under former CDCR regulations, prisoners were separated by race in double cells for up to 60 days each time they entered a new correctional facility, on the rationale that the policy prevented violence caused by racial gangs.  The Supreme Court ruled the practice unconstitutional in Johnson v. California, 543 U.S. 499 (2005).  (Proskauer Rose represented the petitioner, an African-American inmate, before the Supreme Court.)

Although more than three years have passed since Johnson was decided, progress has been slow.  The desegregation process has been met with resistance, particularly among inmates who recognize the primacy of race as a determinant of prison social conduct.  The first integrations follow more than a year of education of staff and inmates of the legal requirement and benefits of ending California’s long history of prison racial segregation.  The celling of inmates of different races and ethnic groups follows individualized study of the more than 174,000 California inmates and characterization of them by CDCR staff as “eligible” to be housed in an integrated setting.  Close attention to race-based gang affiliations has driven the classification effort, and violent racists will currently remain segregated.

Sierra Conservation Center and Mule Creek State Prison are the first California institutions to integrate, and there are plans for integration to spread statewise by January.  It is anticipated that all 30 of California’s prisons will make the transition by 2010.

California will surely benefit when its prisons are de-segregated.  First, the official sanction for a discarded policy will be lifted. Second, prisoners will face a world in which race is not an official determinant of fundamental policies such as where and with whom a prisoner will live. Finally, the prospect for an easier transition into a racially mixed culture outside of prison will be enhanced. In short, all sound penalogic policies will be advanced by getting California out of the practice of racially segregating its prisoners.

Bert Deixler

Proskauer Rose

August 8, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (8) | 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 8, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

August 7, 2008

Hamdan, Osama Bin Laden’s Driver, Sentenced to 5 and a Half Years

Salim Hamdan, the Yemeni national who was Osama Bin Laden’s driver, and the first person to be tried by a military commission in 60 years, was sentenced today to 66 months in a detention facility at Guantanamo Bay for providing material support to a terror organization.  Prosecutors were seeking a sentence of at least 30 years for Hamdan, who had faced life in prison. The jury returned its verdict, after just 70 minutes of deliberations. 

The jury sent a strong message to the U.S. government. Although Hamdan had been found guilty of providing material support to a terror organization for his role in the September 11th attacks on the United States, the military jury cleared him of the conspiracy charges.  Further, the military jury was aware before determining the sentence of the Court's determination to give him credit for the 61 months and eight days served.  Taking that time into effect, only 5 months remain on Hamdan's sentence.

The story has been covered by SCOTUSblog here, as well as by many media outlets, including an article posted here.

Guest bloggers

August 7, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (25) | TrackBack

District Court Declines to Extend Booker to § 3582 Resentencings

On Monday, in United States v. Atwell, the Middle District of Florida held that Booker should not be extended and applied to § 3582 resentencings.  Randall Atwell had been convicted of possession with intent to distribute and distribution of more than 50 grams of crack.  Although originally sentenced to life imprisonment, Atwell’s sentence was vacated and he was re-sentenced to 210 months’ imprisonment.  Thereafter, Amendments 706 and 711 to the guidelines were retroactively adopted to address the disparity between crack and powder cocaine sentences by reducing the crack guidelines.  Thus, pursuant to 18 U.S.C. § 3582(c), the court had the authority to reduce the defendant’s prison term further to 168 months.  The defendant, however, argued for an even steeper reduction to 120 months—the statutory mandatory minimum under 21 U.S.C. § 841—under Booker.

Although noting the lack of accord among district courts across the country on whether Booker should apply to § 3582 resentencings, the court ultimately rejected the defendant’s argument. 

[H]aving considered all available persuasive authority on the subject, this Court finds Judge Steel’s Opinion in United States v. Speights, 2008 U.S. Dist. LEXIS 10356 (S.D. Ala. June 23, 2008), to be a sound and accurate statement of the reasons Booker does not apply to § 3582 resentencings.  Therefore, this Court incorporates that Opinion by reference herein and finds that it is without jurisdiction to reduce [defendant’s] sentence below 168 months.

Download UnitedStatesv.Atwell.pdf

Guest bloggers

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

Before a Sentencing Court Turns Assault Into Murder, It Needs to Follow the Proper Standards

Yesterday, in United States v. Azure, the Eighth Circuit vacated and remanded the sentence imposed on defendant Tamara Azure, a/k/a Tamara Wind, after the district court essentially used two assault convictions to impose a sentence for a dismissed murder charge.  In doing so, the Eighth Circuit focused on the failure to apply proper standards, but did not consider the appropriateness of relying on a dismissed charge to achieve a massive increase in the imposed sentence. 

The sentencing court stated it was “troubled by the tail wagging the dog,” in that while Wind had pled guilty to “two penny-ante assaults with a dangerous weapon, . . . those convictions were being converted into a sentencing hearing for murder.”  Despite the supposed reservation, the district court was apparently more concerned with the defendant’s violent (though largely not prosecuted) past and the dismissed murder count, and proceeded to jack up the sentence from the guidelines ranges of 37 to 46 months for each charge to a total sentence of 180 months.  The district court cleverly achieved this sentencing feat by increasing the defendant’s criminal history from I to VI and then imposing consecutive sentences. 

The Eighth Circuit held that the district court erred in upwardly departing with respect to criminal history: 

The court departed upward to criminal history category VI from category I, “taking into account [Wind’s] past long and detailed history of violence, including the use of dangerous weapons, knives, forks, and [among] other things, biting people.” The court did not attempt to assign hypothetical criminal history points to the conduct that did not result in convictions, and then determine what the appropriate criminal history category would be. ... While the district court is not required to engage in a “ritualistic exercise in which the sentencing court mechanically discusses each criminal history category it rejects en route to the category it selects,” . . . the court must provide sufficient indicia of why the intermediary categories are inappropriate. This is particularly important when the upward departure takes the defendant from the lowest to the highest criminal history category. The court also did not compare Wind’s criminal history with that of other defendants who are assigned criminal history category VI.

                        *          *          *

Without the benefit of additional analysis by the district court, we cannot conclude that the district court’s “findings were adequate to explain and support the departure in this particular case.” Collins, 104 F.3d at 145. Failing to adequately explain an upward departure is a significant procedural error, as is improperly calculating the advisory Guidelines range. Gall, 128 S. Ct. at 597. Because, on this record, we conclude the district court abused its discretion in determining the extent of the upward departure based upon underrepresented criminal history, we must remand.


The Circuit also held that the sentencing court erred in considering the murder without finding that the government had met its burden of rebutting, by a preponderance of the evidence, Wind’s defense of self-defense:

The district court did not correctly apply the burden of proof when considering the absence of self defense as related to the conduct underlying dismissed Count III. Count III alleged that Wind “willfully, deliberately, and with premeditation and with malice aforethought” killed Pickner “by stabbing him in the chest with a knife.” At the sentencing hearing, Wind countered this murder charge by raising self defense as a justification for Pickner’s death. The court acknowledged that the government bears the burden of proving an absence of self defense once the issue is called into question during a trial, but indicated it was unsure of the proper allocation of the burden of proof when considering the issue at sentencing. This was a significant procedural error. After self defense became an issue at sentencing, the government bore the burden of establishing Wind did not act in self defense by a preponderance of the evidence.

While the remand forces the district court to recalculate Wind's guideline range, there is no assurance that the court will not reimpose the same sentence.  Indeed, given the court's power to achieve precisely the same result through § 3553(a) variances and the imposition of consecutive sentences, the propriety of treating Wind as a criminal history category VI offender may prove irrelevant.

Download UnitedStatesvAzure.pdf

Guest bloggers

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

Riding the Booker Rapids

Yesterday, the First Circuit announced its decision in United States v. Russell, available here, a case that “crystallizes the difficulties confronted by defendants - and district court judges - as they navigate the turbulent waters of Booker and its aftermath.” The court affirmed Antron Russell’s sentence of 180 months for distribution of crack cocaine.  Russell had already been sentenced three times in relation to this conviction, first for 235 months, prior to the Supreme Court’s decision in United States v. Booker, 151 months following Booker, and then 180 months after the First Circuit rejected the district court’s calculation of the variance in the second sentence.  On the third remand, the district court noted that it had substantial discretion to vary from the guideline sentence, considered various factors including the proposed crack cocaine guideline amendments, and imposed a 180-month sentence after explaining that it previously undervalued several aggravating factors.  Russell appealed this third sentence on the ground that it was unreasonable, relying in part on the Supreme Court’s Kimbrough decision, which was decided while his third appeal was pending.

With respect to this third appeal, the First Circuit framed the issue as follows:

The question, then, is whether the district court avoided procedural error at Russell's third sentencing hearing by properly considering all of the relevant factors – including the crack/powder disparity – in making its § 3553(a) determination that a 180-month sentence was "sufficient, but not greater than necessary" in this particular case.

In answering that question, the Circuit held that there was no error.  Also, even though the third sentence was imposed prior to the Kimbrough decision, the First Circuit found that the district court’s approach “presciently anticipated the guidance that the Court would provide in Kimbrough.”

As disappointed as the First Circuit must be that it will likely not get a fourth opportunity to address Russell’s sentence on direct appeal, it can always look forward to the inevitable habeas petition.

Guest bloggers

August 7, 2008 | Permalink | Comments (0) | TrackBack

Oregon Court Offers Pizza and Chicken in Exchange for Murderer’s Guilty Plea

Citing benefits to judicial economy, Deputy District Attorney Josh Lamborn agreed with the decision of Multnomah County Judge Eric Bergstrom to provide a confessed murderer, Tremayne Durham, with KFC Chicken and sides in exchange for a guilty plea to the murder of Adam Calbreath, a potential business associate. According to the agreement, immediately after entering the guilty plea Durham would receive KFC and Popeye’s Chicken, as well as mashed potatoes, coleslaw, carrot cake and ice cream. In addition, following his sentencing, Durham, who apparently wanted a break from jail food, would be provided with pizza, lasagna, calzones and ice cream. Although these concessions save the significant expense of a trial and potential appeals, pandering to the whims of a killer could be construed as undermining the integrity of the judicial process. But hey, at least he got coleslaw.

A news article discussing the case is available here.

Guest bloggers

August 7, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (11) | 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 7, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

August 6, 2008

Medellin Executed After Supreme Court Ruling

Yesterday, in a 5-4 decision, the Supreme Court denied Jose Medellin's application for a stay of execution.  Medellin was executed soon thereafter.  There continues to be an extraordinary degree of coverage of the story, including a comprehensive write-up by SCOTUSblog, available here.

Among the other noteworthy features of the decision was the filing of four separate dissents by Justices Stevens, Souter, Ginsburg, and Breyer.  Each gave separate reasons for his or her vote to grant the application for a stay of execution.  As Justice Breyer observed, only four votes are needed to grant a petition for a writ of certiorari; but in the context of a death case, a fifth vote is necessary to stay the execution.  Justice Breyer found it "particularly disappointing that no Member of the majority has proved willing to provide a courtesy vote for a stay" in order to consider the Solicitor General's as-yet-unfiled views.  The majority apparently felt that seeking the Solicitor General's views was too slender a procedural reed to justify the delay, when in fact it would take action by Congress or the Texas legislature to set aside the sentence, the possibilities of which were "too remote" to justify a stay.

Guest bloggers

August 6, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (36) | TrackBack

Third Circuit Holds that Alternative Sentence Under § 3553(a) Renders Potential Guidelines Error “Harmless”

Monday, in United States v. Santiago-Bautista, available here, the Third Circuit effectively allowed a sentencing court to insulate itself from appeal by holding that any error in calculating the guidelines was rendered harmless by the district court’s articulation of an alternative, equivalent sentence under § 3553(a).  The defendant, Mario Santiago-Bautista, had been convicted of illegal reentry following deportation.  At sentencing, the district court concluded, over Santiago-Bautista's objection, that a prior state conviction for possession of a weapon was an “aggravated felony” for sentencing purposes, and thus raised his base offense level by several levels.  But the district court explained that even if it erred in concluding that the weapon offense was an aggravated felony, it would impose the same sentence in an exercise of its § 3553(a) discretion. The Third Circuit affirmed:

At sentencing, the district court imposed a custodial sentence of 19 months based on two independent grounds. The district court concluded that violation of N.J.S.A. 2C:39-5(d) constituted a crime of violence under 18 U.S.C. § 16(b), resulting in an offense level 13, criminal history category 3, and yielding an advisory Guideline range of 18 to 24 months. However, the court went on to explain that even if that legal conclusion was incorrect (and the offense level should have been 10), the court would nevertheless have ‘var[ied] up 2 points, and using a range of 15 to 21 months, impose[d] a sentence of 19 months.’ App. 101. This variance would be based on ‘the nature and circumstances of this defendant, . . . [the] nature and circumstances of the offense, [his] violent act regarding Miss Chan, prior membership in a gang, his lack of candor [towards] law enforcement, and his use of fraudulent documentation.’ Id. The court further explained that such a sentence would address some concerns about danger to the public, as well as ‘reflect the seriousness of the reentry,’ and ‘promote respect for the law.’ Id.

Thus the court clearly considered the sentencing factors set forth in 18 U.S.C. § 3553(a) when imposing this sentence. Based upon our review of the record, we conclude that even assuming arguendo that the district court erred in its analysis of Defendant’s prior conviction, that error was harmless as the court would have imposed the same sentence anyway for the reasons it explained. We are convinced that the district court engaged in a careful and extensive explanation of the reasoning underlying the sentence under either Guidelines framework. We find no error in the alternate sentence, nor do we find any merit in Santiago-Bautista’s argument that a district court abuses its discretion when it articulates an alternate sentence.

Is the Third Circuit’s ruling consistent with the spirit of Gall, which states that judges must calculate the guidelines first and then consider § 3553(a)?  One could reasonably argue that a correct guidelines determination is a necessary prerequisite before considering whether a § 3553(a) variance is appropriate.

Guest bloggers

August 6, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (18) | TrackBack

Seventh Circuit Vacates and Remands Case For Resentencing As District Court Failed to Apply Correct Standard of Proof

In United States v. Schroeder, the Seventh Circuit clarified the important distinction between the standard for admissibility of evidence at sentencing hearings and the government’s burden of proof with respect to a disputed fact -- in this case, the amount of loss based on relevant conduct. 

Schroeder’s first sentence, for one count of tax preparer fraud, was reversed by the Seventh Circuit upon a joint motion, because the sentence imposed was six months longer than the statutory maximum.  Oops. 

Schroeder’s resentencing hearing fared little better.  Here, the primary area of contention was the tax loss calculation.  The government’s loss figure included amounts based on civil audits of Schroeder’s tax return clients, which revealed overstated or misrepresented deductions.  Schroeder disputed the inclusion of this tax loss, arguing that the government had not proven that these improper deductions were attributable to Schroeder as opposed to his clients.  Ultimately, the district court denied Schroeder’s objection, finding that the loss calculation was “based on information that is of sufficient reliability that can properly be considered under the guideline provisions.”

The Seventh Circuit reversed.  It first held that the resentencing hearing was “flawed from the outset” because the district court “announced its findings as to the amount of tax loss—a critical sentencing determination—before Schroeder’s attorney had an opportunity to comment on the issue.”  Even though the defense was able to make its arguments to the judge thereafter, the Circuit found that the sentencing judge’s prejudging of the tax loss issue “undermined the fairness of Schroeder’s hearing.” 

Next, the Circuit noted that although the standard for admissibility at sentencing is whether “the information has sufficient indicia of reliability to support its probable accuracy,” a disputed fact must nonetheless be proved by a preponderance of the evidence.  The Seventh Circuit wrote:

The court’s statements at resentencing strongly suggest that it confused the standard for the admissibility of evidence at sentencing with that for proving relevant conduct, a very serious error.  As we have already noted, it is well established that the government must prove amount of loss by a preponderance of the evidence.  See United States v. Omole, 523 F.3d 691, 701 (7th Cir. 2008).  The preponderance of the evidence standard requires “that the fact-finder believe that the existence of a fact is more probable than the non-existence of that fact.”  United States v. Smith, 267 F.3d 1154, 1161 (D.C. Cir. 2001).  In determining whether the government has met its burden of proof at sentencing, a court may consider information that would not have been admissible at trial if it has “sufficient indicia of reliability to support its probable accuracy.”  United States v. Artley, 489 F.3d 813, 821 (7th Cir. 12 No. 07-3773 2007).  But the presumed accuracy of information that has “sufficient indicia of reliability” does not relieve the court of its responsibility to weigh the proffered evidence and determine whether the government has proven that the existence of a disputed fact is more probable than not.

The Seventh Circuit noted that the district court never found that the government proved the tax loss by a preponderance of the evidence, and was troubled by the court’s apparent suggestion “that the government had met its burden of proof merely by submitting admissible evidence.”  The Circuit also concluded that the district court had failed to hold the government to its burden of proof because it had treated the improper deductions “as frauds attributable to Schroeder without conducting any analysis as to what evidence proved that Schroeder’s unlawful conduct caused the underpayments.” 

Maybe the third time will be the charm.

Download united_states_v. Schroeder.pdf

Guest bloggers

August 6, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

Guest Bloggers

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 6, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

August 5, 2008

Continuing Medellin Coverage

As reported here by SCOTUSblog earlier today, on Monday evening Medellin’s attorneys filed a reply brief in the Supreme Court again urging the Court to put his execution on hold in order to allow Congress to enact legislation implementing the United States’ obligations under the Vienna Convention. As of this posting, the execution is set to occur this evening at 7 p.m.

UPDATE: According to the Associated Press, Medellin’s execution had not taken place as of 8 p.m. Tuesday evening.

Guest bloggers

August 5, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (46) | TrackBack

Practitioner's Notes: Federal Sentencing Guideline Analysis Has No Place in State Court

It seems obvious, at least to me, that the federal sentencing guidelines do not apply in state courts.  Indeed, there is an intermediate appellate decision in New York in which this “issue” was addressed by the court.  The Appellate Division, First Department, in People v. Sung Min, 249 A.D.2d 130, 671 N.Y.S.2d 480 (1st Dept. 1998), explains:  “While there exist United States Sentencing Guidelines established by the United States Sentencing Commission, pursuant to 28 USC § 994, they apply exclusively to Federal Courts.  There are no sentencing guidelines for New York State Courts.”

Apparently, however, it is less obvious to others, as intrepid state and local prosecutors are trying to impose the federal sentencing guidelines on state court criminal sentencings by suggesting that they are “informative.”  This very tactic was recently tried by the New York Attorney General’s Office in a state criminal action in which the defendants were charged with a violation of the Donnelly Act, New York’s antitrust statute.  It was argued that because Donnelly Act jurisprudence is based largely upon federal antitrust cases, consideration of the sentences that would have been imposed had these changes been brought federally would be meaningful to the state court.  Fortunately, the sentencing court held that it was not.

Introducing the federal sentencing guidelines into the New York state system would be an unmitigated disaster.  The federal sentencing guidelines generally provide for sentences that are substantially harsher than most state sentences for equivalent conduct.  And with good reason, not the least of which being there are far fewer federal cases.  Because the federal criminal justice system has the luxury of bringing far fewer cases, it can devote more resources to each one.  State systems, particularly states like New York, have to move many, many cases, and do so quickly.  If state prosecutors made a “federal case” out of every state crime for which there were an equivalent federal crime, many already overburdened state systems would collapse under the weight.  The prisons couldn’t handle all of the prisoners with such longer sentences.  Nor could the prosecutors or the courts, as a system with more severe sentences and less flexibility in plea negotiations would likely create many more trials, and longer pretrial processes.  Thus, as much as hyper-aggressive state prosecutors would love to take advantage of the draconian federal sentencing guidelines, doing so is a mistake.

Besides, I’ve never liked the guidelines.  My learned colleagues have argued that the guidelines promote uniformity and proportionality, but I’ve always been of the view that they prevent judges from recognizing each crime’s differences and each individual defendant’s unique circumstances.  I’ve always thought that if you were concerned that judges weren’t being fair and uniform, the solution was to get better judges and to train them better, not handcuff them with complicated rules that try to reduce complex human issues into black and white mathematical formulas.  Although some of these concerns may have been alleviated, in part, by the Booker decision, the guidelines remain an important part of the federal sentencing process.  However, regardless of whether the federal sentencing guidelines assist in the exercise of good judgment or impinge upon it, let that debate stay in federal court.

Richard Spinogatti

Proskauer Rose

August 5, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (6) | 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 5, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

August 4, 2008

Practitioner’s Notes: Don’t Get Trapped by a Sentencing “Floor” – the Importance of the Order in which Co-Defendants Are Sentenced

In a multi-defendant case, there’s one factor that is not discussed by the guidelines but, in practice, has the potential to have a dramatic effect on your client’s sentence:  the order in which the co-defendants are sentenced.  How so? 

Intra-case proportionality is, like gravity, an unseen force that will have an important impact on where your client comes to rest.  Most judges employ their own personal rough sense of justice – consciously or not.  As important as downward departures and § 3553 are, there is one almost immutable reality:  the ringleader is not going to get less time than the mid-level supervisor, who is not going to get less time than the mope.  (The one arguable exception is where criminal history categories are materially different.)  If you represent the ringleader, once the less culpable defendants are sentenced, you are at the mercy of the job the other defendants’ attorneys did.

Take, as a hypothetical, a scenario where there are two defendants – the President of a company and the accountant who helped her cook the books.  You represent the President, and you are a superstar of creative sentencing arguments.  You can make the Son of Sam appear as sympathetic as the Dalai Lama, and Marie Antoinette appear as charitable as Mother Theresa.  You use downward departure motions like Jedi mind tricks, and can exploit § 3553 with the best of them.  Yes, you are that good.  Now, had you ensured that your client was sentenced before the accountant, perhaps you could have convinced the Judge that the non-custodial sentence your client so desperately wants is far more appropriate than the minimum guidelines range of 37 months.  The sky (or the floor in this case) would be the limit. 

But, instead, the Judge’s Deputy schedules the sentences randomly, and the accountant happens to go first.  The accountant doesn’t have a lot of money, and is represented by a mediocre defense attorney, who walks his client into sentencing without preparing a sentencing submission, and does a ho-hum job extolling his client’s virtues.  His client gets 16 months.  Now, it’s your turn.  Even though you put together the most compelling sentencing submission of all time, and the Judge’s law clerk actually cries while reading it, guess what?  It won’t matter.  Your client is going to do more than 16 months.  Probably substantially more.  After all, and as the Judge will probably ask you:  How can your client get less time than the accountant when your client was the mastermind and ringleader? 

This type of situation happens all the time.  Once a floor is created by a sentence imposed on a less culpable co-defendant, the Judge’s discretion is greatly constrained by practical considerations of proportionality. 

The converse is also true.  If a more culpable defendant is sentenced before a less culpable one, and the former’s attorneys achieve a fantastic result, the latter can benefit greatly because he can draft off their efforts.  So, to go back to our hypothetical, if the President was facing a minimum of 37 months, and you convince the Judge that 13 months is more appropriate, then the accountant, who was facing a guidelines range of 24 to 30 months, can feel pretty confident that he will receive substantially less than 24 months, and likely less than 13 months, because you’ve plowed the road for his attorneys.  Moreover, the less culpable defendant doesn’t necessarily take the same risks by going second.  Just because the ring leader isn’t deserving of sympathy, doesn’t mean that the little fish isn’t.

The key is to try to work with the Judge’s Deputy and the other defense attorneys – even if some of the defendants have cooperated against the others – to arrange it so that the co-defendants are sentenced in order from most culpable to least, assuming of course you can all agree on what that order is.  That way, everyone can build off the others’ efforts and each sentence lowers the ceiling for the next co-defendant, but no one’s sentence creates a floor.  Admittedly, you will not always be able to do so.  But if it works, you help ensure that the Judge retains the maximum flexibility and discretion to consider your client’s unique situation and render a fair sentence. 

Matthew Queler 

Proskauer Rose

August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

Sixth Circuit Overturns Sentence of Death Due to Ineffective Counsel

In Van Hook v. Anderson, available here, the Sixth Circuit reversed a decision by the district court and granted the habeas petition of Robert Van Hook, who was sentenced to death for a 1985 murder.  The Circuit reversed the death sentence, finding ineffective assistance of counsel during the mitigation phase of Van Hook’s trial.  In holding that this ineffectiveness violated Van Hook’s Sixth Amendment rights, the court stated:

[Van Hook’s] counsel was deficient [first,] by failing to fully investigate and present as evidence all available mitigating factors; second, by failing to secure or attempt to secure an independent mental health expert to testify that the crime was the product of a mental disease; and third, by mistakenly introducing and also failing to object to proscribed evidence [a victim impact statement] that was clearly damaging to Van Hook’s case.  The combined effect of these three errors prejudiced Van Hook, rendered the mitigating hearing unreliable, and led to the imposition of the death penalty.

The court also found prejudice, noting that “[c]ounsel’s deficient performance prevented the three-judge panel from learning fully about the two statutory mitigating factors that were the strongest in his case” and “caused the three-judge panel to consider unconstitutional and damaging information while deliberating on the appropriate sentence.”  The court remanded the case to the district court with an instruction to vacate the sentence, “unless the state conducts a new penalty phase proceeding within 180 days of remand.”

As this case suggests, while in ordinary criminal cases it is notoriously difficult to meet the rigorous standards of an ineffective assistance of counsel claim, courts may be more willing to find ineffectiveness at the penalty phase of a death case, where the stakes are at their highest and the effects of poor lawyering are at their gravest.

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August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (8) | TrackBack

Second Circuit Affirms Imposition of a Ten-Year Statutory Mandatory Minimum in Place at the Time of the Offense Despite Its Expiration Prior to the Sentencing Date

In United States v. Klump, available here, the Second Circuit held that the district court properly applied the ten-year statutory mandatory minimum sentence in place at the time the defendant committed the crime, despite the shorter statutory mandatory minimum in force at the time of sentencing. In February 2003, the defendant was charged with, inter alia, one count of possessing a semiautomatic assault weapon in furtherance of a drug-trafficking crime. At the time of Klump’s offense and at the time he was convicted, 18 U.S.C. § 924(c)(1)(B)(i) mandated a minimum sentence of ten years’ imprisonment. Fifteen months before the defendant was sentenced, however, this provision expired pursuant to a sunset provision. Klump argued that the district court should have imposed the five-year mandatory minimum in effect at the time he was sentenced. The sentencing court rejected Klump’s argument and imposed the ten-year sentence.  The Second Circuit affirmed, holding:

The older version of § 924(c)(1)(B)(i) applies to Klump even though it had expired before he was sentenced. Pursuant to 1 U.S.C. § 109, “[t]he expiration of a . . . statute shall not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the . . . statute shall so expressly provide.” Section 924(c)(1)(B)(i) contains no provision expressly prohibiting its application to defendants, like Klump, who were convicted of possessing a semiautomatic assault weapon before the statute expired. Thus, the district court properly sentenced him to the ten-year mandatory minimum sentence called for by the statute.

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August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Medellin’s Execution Set to Move Forward

As of this posting, the execution of José Ernesto Medellin, the Mexican national on Texas death row for the rape and murder of two teenage girls in 1993, is scheduled to occur as planned on Tuesday evening. Medellin’s case, which has been covered in-depth on this blog, continues to garner both domestic and international attention. 

The World Court (formally the International Court of Justice at The Hague, Netherlands)  has recognized that under the Vienna Convention, foreign nationals have the right to consult with their respective consulates after being charged with a crime and ordered that Medellin’s conviction be reviewed and reconsidered under the treaty’s provisions.  It has been reported that Medellin never asserted any rights under the Vienna Convention during either the guilt or penalty portions of his trial, however, and raised the issue for the first time in a state trial court seeking post-conviction relief. 

Medellin’s case has a complex history.  As discussed at SCOTUSblog here, the Supreme Court decided this past spring that although the United States is bound by the Vienna Convention, Congress did not provide for its actual enforcement.  The Court further ruled that the President did not have the authority to order Texas to comply with the World Court’s decision and to grant new hearings for the foreign nationals. 

Texas has continued to resist pressure in Medellin's case from President Bush and other U.S. officials urging it to comply with the World Court’s order. As also posted by SCOTUSblog here, Texas today filed papers with the Supreme Court urging the Court to allow tomorrow’s execution to proceed.

Previous posts on Medellin’s case on this blog include:

  ·  Texas shrugs in response to World Court call for execution stays

  ·  A lengthy argument in Medellin

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August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (18) | TrackBack

Western Australia Takes Steps to End Mandatory One-Third Reductions in Criminal Sentences

In SL&P's attempt to cover the world of sentencing, we take note of an interesting story on the other side of the Pacific.  The Western Australian government has taken steps to repeal the transitional provisions of the truth in sentencing laws it passed in 2003, which required a mandatory one-third reduction, presumably to reflect better the actual time served by defendants after their sentences were handed down.  The laws came under renewed attack last month, when the WA Supreme Court ruled that they applied to all statutory offenses, even those passed after the sentencing laws were enacted, whose maximum penalties were thereby diluted.  The Attorney General, Jim McGinty, said that repealing the laws means judges will finally be able to impose the maximum sentence available for serious crimes.  An article on the topic explains that the proposal would:      


Repeal the Sentencing Act transitional provisions to stop judges giving compulsory one-third reductions when sentencing serious criminals. For the first time, judges will have the ability to impose maximum sentences.

Direct judges to be consistent in dishing out sentences by looking at precedents imposed for similar cases.

Give the Director of Public Prosecutions powers to apply to the court to re-sentence any offender who received a reduced sentence either initially or on appeal from August 1, 2008 up until the laws come into force later this year.

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August 4, 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." We may be contacted at this address until Doug returns.

August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack