« "Do progressive prosecutors increase crime? A quasi-experimental analysis of crime rates in the 100 largest counties, 2000–2020" | Main | An abridged and overdue weekend round-up of recent stories and commentary »
April 26, 2024
After arguments in quite a SCOTUS Term, another call for papers for FSR issue on "Booker at 20"
Based on parts of yesterday's SCOTUS oral argument that I was able to hear on the road and then various subsequent press reports, it sure sounds like one particularly high-profile federal defendant is poised to get at least a partial victory from the US Supreme Court on his immunity claims. More broadly, as the Justices now turn from oral arguments to completing and releasing opinions, I surmise there will likely be any number of big criminal law decisions in addition to Trump v. US that will be historic and consequential for many years as the Court wraps up its OT23.
At the risk of trying to turn every story into a sentencing story, I cannot help up use recent events to flag again that we are approaching the 20th anniversary of what I would call the most consequential of all SCOTUS rulings for federal defendants. Booker's landmark change to federal sentencing procedure impacts every one of tens of thousands of federal criminal cases each year even before indictment and certainly following any conviction. And, as flagged in this post last month, there is call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker. I previously threatened to repost this call every few weeks, and is am keeing to the threat by winding down a busy week with these shortened specifics:
Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue. FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice. FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries. Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.
FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations. The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission). Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits. Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.
April 26, 2024 at 10:07 AM | Permalink
Comments
While I don't have time to write this paper, I want to remind people of one harsh and unpair part of the fallout following the Booker decision in the 11th Circuit, which I am sure many have now forgotten about. After Booker was decided, every Circuit Court except the 11th Circuit, was permitting defendants with pending Federal Criminal appeals to file briefs (including letter briefs), raising the Booker issue, even if the defendants had already filed their opening and reply briefs. Thousands of cases had the sentence vacated and remanded for reconsideration by the District Court, in light of Booker. But the 11th Circuit alone among all the other Circuits followed their usual rule if the defendant had not raised the issue in his opening brief (even if that brief was filed before Booker was decided), then the issue was deemed to have been waived and the defendant did not get to make any Booker arguments. The idea that a single Circuit Court was aberrant and refused to follow the other eleven Circuit Courts that hear criminal appeals fundamentally denied the 11th Circuit criminal defendants Equal Protection of the Laws. In 2006, I filed 3 Petitions for Certiorari to the U.S. Supreme Court on this narrow issue and all were denied. I know that many others were raising the same issue in Cert. Petitions, but the Supreme Court refused to hear the issue. Any 20th anniversary group of papers on Booker should not ignore or forget this issue, that hundreds of defendants in the 11th Circuit were denied the opportunity to ever raise the Booker issue, even though their appeals were pending on direct appeal at the time Booker was decided. It's a great injustice, a travesty ignored by the Supreme Court.
Posted by: Jim Gormley | Apr 29, 2024 9:52:13 AM
The 11th Circuit's position on refusing to permit Booker arguments for cases already on direct appeal in 2005 violates the spirit, if not the rule, Griffith v. Kentucky, 479 U.S. 314 (1987).
Posted by: Jim Gormley | Apr 29, 2024 12:57:32 PM
Now now, just because Griffith says that a new rule applies to pending appeals doesn't mean that every defendant who has an appeal pending gets to disregard the rules about raising and arguing issues and expect to get a second chance just because a new decision has come down. if appellate counsel should have raised the issue (in anticipation of the pending SCOTUS decision), the defendant can file a 2255 on that basis. I wouldn't have done what the 11th Circuit did - I would have allowed the defendants to file supplemental briefs raising the Booker claim. But I would have (had I been a judge) deemed waived every such claim if it was not raised in the opening brief.
Posted by: Da Man | Apr 30, 2024 12:58:06 PM
My view on the issue is that the treatment should be the same in all 12 Federal Circuit Courts that hear criminal appeals. It appears to me to violate Equal Protection of the laws for 11 Circuits to permit supplementary briefing on the Booker issue, even if not raised in the opening brief (which may have been filed before Booker was decided), and for a single Circuit Court (the 11th Circuit) to take the opposite view. It is outrageous that the Supreme Court permitted the 11th Circuit to treat defendant/ appellants this way, when 11 other Circuit Courts offered so much more openness and permissiveness in raising the Booker sentencing issue. It was just wrong, and even a 6th grader could have seen it. Someone actually needs to count the number of published and unpublished opinions filed prohibiting appellants from raising the issue for this technical reason. I have always wanted to know how many people were affected by the 11th Circuit's practice.
Posted by: Jim Gormley | Apr 30, 2024 3:38:16 PM
Mr. Gormley - I agree with you that it was dumb for the 11th Circuit not to let defendants file supplemental briefs raising Booker. My specific question to you is whether you think that allowing such supplemental briefs also would have required the 11th Circuit to consider on the merits (subject only to plain error review) the Booker issue? Or could that court (or any other appellate court) say that by failing to raise the Booker claim in the opening brief (presumably at a time when everyone knew Blakely existed and that a Booker might be coming down the pike) the defendant waived the issue for direct appeal (See FRAP 28(a)(8)(A)), relegating that defendant to a 2255 motion arguing that counsel was ineffective for failing to raise the claim? Or are you of the view that, if 8 courts choose to relax procedural rules and disregard waivers and forfeitures, all circuits must do so?
Posted by: Da Man | May 1, 2024 1:18:29 PM
I think that Booker was a unique case, in a class of its own, not susceptible to the normal analysis, since it fundamentally altered the legal view of the Federal Sentencing Guidelines that apply to all Federal criminal defendants. And yet, I saw few defendants get any relief from their sentencing Judges upon remand for reconsideration of the sentence, in light of the Booker holding. Most defendants (but not all) received the same sentence following remand. I have a friend whose case was remanded for resentencing here in the Eastern District of Kentucky. Not only did the Judge imposed the same 20-year sentence [the statutory max. under 21 U.S.C. section 841(b)(1)(C)] after extrapolating drug quantity from a sample of 50 patient files to all narcotic pills written for more than 2,000 patients [no expert reviewed or gave any opinion about the narcotics prescriptions written for 1,950 patients], but she also refused to permit the defendant to allocute a second time. On a 2nd direct appeal, she was summarily reversed by the Sixth Circuit and ordered to re-sentence the defendant a 3rd time, permitting him to allocute again, which is a Constitutional right. After 5 years of habeas corpus litigation, we eventually secured his released from prison after he had served 13.5 years of his sentence, based upon ineffective assistance of counsel at plea bargaining. His young defense lawyer told the physician to turn down a 41-month plea offer, based upon the idea that he could get him acquitted based upon entrapment by undercover law enforcement officers. Defense counsel never gave the physician any estimate of how long a possible sentence he was facing if he went to trial and was convicted on most counts, which ws what happened. The defendant was shocked to have turned down a 41-month long plea offer and then get sentenced to 20 years, after being convicted on most (but not all) counts of the indictment at trial. Defense counsel was only 3 years past law school graduation, and had never handled a Federal criminal case before. Defense counsel did not purchase a copy of the Federal Sentencing Guidelines Manuel and review the possible Guidelines Sentence until after the physician was convicted.
Posted by: Jim Gormley | May 2, 2024 8:57:13 AM
Mr. Gormley,
Most of your answer is not responsive to my question. Kudos to you for securing collateral relief for that particular client, but if courts had to start deciding which SCOTUS decision is sufficiently "unique" and in a "class of its own" that all defendants get the benefit of the decision no matter whether the issue was raised below or in an opening brief, it would be chaos. Lawyers have a duty to keep abreast of SCOTUS cases and to know what is pending before the court. If Blakely foreshadowed the demise of the mandatory guidelines, then no reasonable attorney should have failed to argue at sentencing or on appeal that the Guidelines were unconstitutional. But the failure of some defense attorneys to do so doesn't mean we should throw the rules out the window - it means that the aggrieved defendant should file a 2255 and, if he can prove his sentence would have been lower (or his appeal would have been resolved differently) with proper assistance, he should get a collateral attack remedy.
My two cents.
Posted by: Da Man | May 6, 2024 5:22:43 PM
