Friday, August 08, 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

Thursday, August 07, 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

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

Wednesday, August 06, 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

Tuesday, August 05, 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

Monday, August 04, 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

Friday, August 01, 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

Thursday, 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

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

Wednesday, 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

Tuesday, 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

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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

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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.

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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.

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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.

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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

Monday, 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

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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.

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

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