Sentencing Law and Policy Web LogTable of Contents

February 12, 2005 through March 12, 2005

March 12, 2005....................................................................................................................1Sentenced for three uncharged murders..........................................................................1

March 11, 2005....................................................................................................................1Ninth Circuit's Ameline goes en banc!.............................................................................1On the road again.............................................................................................................2Smylie does not make everyone smile.............................................................................2Booker events not to be missed.......................................................................................3Daily dose of Booker in the Sixth Circuit........................................................................3In epic showdown, Blakely trumps Harris in Minnesota................................................4

March 10, 2005....................................................................................................................4Criminal history disputes and Shepard issues.................................................................4Lots more Booker action in the Sixth Circuit..................................................................5More on Medellin issues..................................................................................................5More reasons Smylie made me smile...............................................................................6A morning shot of Booker circuit action.........................................................................6The meddling resulting from Medellin............................................................................7

March 9, 2005......................................................................................................................7The Indiana Supreme Court speaks on Blakely!..............................................................7The plain error madness continues in the 4th Circuit......................................................8Ask and ye shall receive ... Booker data..........................................................................8Booker meets Roper and the rehabilitation of rehabilitation...........................................9DC Circuit joins the Booker world................................................................................10Tenth Circuit addresses Blakely retroactivity................................................................10Circuits keeping Booker busy........................................................................................11

March 8, 2005....................................................................................................................11What is the scope of the prior conviction exception post-Shepard?..............................11More for your reading pleasure (Booker and Booker-free)...........................................12When will we see more post-Booker data?....................................................................13If you’re gonna do it, do it right — right?.....................................................................13Back to the Sixth Circuit Booker beat...........................................................................14Pondering some post-Shepard questions.......................................................................14

March 7, 2005....................................................................................................................15Helpful accounts of Shepard.........................................................................................15Today's other SCOTUS sentencing ruling.....................................................................15Summarizing Shepard (and seeking state insights).......................................................16O'Connor's Apprendi laments in her Shepard dissent...................................................17The Shepard scramble of the "prior conviction" exception...........................................17Just when you thought it was safe to go back into the (cert. pool) water......................19SCOTUS rules in Shepard (and muddies the prior conviction waters).........................19Still more SCOTUS GVRs............................................................................................20Still more Booker from the Sixth Circuit.......................................................................20

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March 6, 2005....................................................................................................................21Three-ring circus ... err, three-way circuit split.............................................................21Handling Blakely/Booker habeas headaches.................................................................22Sunday morning's must-read section.............................................................................22

March 5, 2005....................................................................................................................23Latest compilation of post-Booker decisions.................................................................23The costs of capital (punishment)..................................................................................23Weekend reading...........................................................................................................24Roper's impact on the next chief?..................................................................................24

March 4, 2005....................................................................................................................25What a sentencing week!...............................................................................................25Intra-circuit split in the First Circuit..............................................................................26The price of justice (aka the costs of Booker)...............................................................27The 5th Circuit is silent no more!..................................................................................27Alaska's Blakely fix........................................................................................................28The fate and future of appeal waivers............................................................................29More interesting Booker remands from the Sixth Circuit.............................................29

March 3, 2005....................................................................................................................30Judge Gertner speaks on Booker!..................................................................................30Contrasting circuit approaches to GVRs.......................................................................31Tennessee's "official" Blakely fix..................................................................................31Judge Adelman strikes again.........................................................................................32Interesting NASC newsletter.........................................................................................33Interesting 6th Circuit Booker dicta...............................................................................33Martha reportedly says: "I just hate these sentencing guidelines."................................33More Booker reports from the front lines......................................................................34The state Blakely beat....................................................................................................34More rapid remands on Booker grounds.......................................................................35

March 2, 2005....................................................................................................................35Judicial perspectives on Booker.....................................................................................35Using international law in a post-Booker world............................................................36Administering Roper.....................................................................................................37More Roper thoughts and the development of state constitutional law.........................37Notable 5th Circuit Booker dodge and criminal history decision..................................38Suspect Seventh Circuit standards?...............................................................................39Roper around the blogsphere.........................................................................................39

March 1, 2005....................................................................................................................40Off line while Ohio bound.............................................................................................40More evidence of the death of death?............................................................................40Using Roper's focus on age in post-Booker sentencings...............................................41Talk of foreign practices in Roper.................................................................................41SCOTUS declares unconstitutional juvenile death penalty in Roper............................42Intriguing Booker-free Gonzales comments and other DOJ news................................43PAG follow-up on recent USSC hearings.....................................................................43Still more Booker GVRs from SCOTUS.......................................................................44The plain error patterns continue...................................................................................44

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February 28, 2005..............................................................................................................44A final LA Booker day..................................................................................................44More insightful Booker metaphors................................................................................45East coast sentencing updates........................................................................................45Gearing up for March Madness.....................................................................................45Can the plain error mess be cleaned up?.......................................................................46Booker items in the Third Branch..................................................................................47

February 27, 2005..............................................................................................................47Sentencing around the blogsphere.................................................................................47

February 26, 2005..............................................................................................................47Weekend plans...............................................................................................................47Booker developments in the morning papers.................................................................47

February 25, 2005..............................................................................................................4811th Circuit does a Booker remand...............................................................................487th Circuit speaks on plain error (and follows Crosby).................................................48Keeping Booker busy.....................................................................................................49Sixth Circuit addresses retroactivity..............................................................................49How should variances that still result in prison terms be coded and considered?.........49Intriguing safety value Booker issue from the Sixth Circuit.........................................50The 11th Circuit sticks with its plain error approach....................................................50

February 24, 2005..............................................................................................................51Off to the Coast..............................................................................................................51A simple solution to the pipeline problem?...................................................................52Eager for more post-Booker data...................................................................................52More thoughts on recent SCOTUS work.......................................................................53Important Booker rulings from district courts...............................................................53Booker remands in the 8th and the 10th........................................................................53A fascinating 3d Circuit rumor......................................................................................54The Blakely beat goes on in the states...........................................................................54

February 23, 2005..............................................................................................................55Will SCOTUS care to clean up the plain error mess?...................................................55More Booker wisdom from the 2d Circuit.....................................................................56Criminal justice, constitutional law, federalism and hot button issues..........................56The Third Circuit speaks more fully on Booker (and Almendarez-Torres)...................57SCOTUS speaks on racial segregation in prison...........................................................58Lots more on Booker from the Sixth Circuit.................................................................58Another questionable 8th Circuit affirmance................................................................59A 5th Circuit Booker sighting (or citing).......................................................................60

February 22, 2005..............................................................................................................60Plain error Booker circuit review...................................................................................60A Booker musing...........................................................................................................61Two for Tuesday from the First Circuit.........................................................................61More SCOTUS Booker GVRs.......................................................................................62

February 21, 2005..............................................................................................................62A long weekend in review.............................................................................................62Mandatory minimum challenges and test cases?...........................................................63

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Is it en banc time for Ameline?......................................................................................63Collecting, parsing and sharing post-Booker data.........................................................64Layperson's Guide to Booker.........................................................................................65Perspectives on sex offender sentencing and treatment................................................65

February 20, 2005..............................................................................................................65Compilation of post-Booker federal decisions..............................................................65A questionable 8th Circuit affirmance...........................................................................65

February 19, 2005..............................................................................................................66Songs in the key of 3553...............................................................................................66More on departures and variances: not quite as easy as 123.........................................67A federal capital trifecta!...............................................................................................68Some smaller circuit Booker dispositions......................................................................69

February 18, 2005..............................................................................................................69More on victims at sentencing.......................................................................................69Giddy with anticipation.................................................................................................70Heading home after a great DC week............................................................................71Highlights from the USSC hearing transcripts..............................................................71Time to put out an APB for the 5th Circuit?.................................................................72Capital notes around the blogsphere..............................................................................72

February 17, 2005..............................................................................................................73Sorting the pipeline cases..............................................................................................73I am not a journalist, but I did sort of play one on a panel today..................................7311th Circuit speaks on retroactivity...............................................................................73Another impressive Sixth Circuit Booker episode.........................................................74Departures, variances and defense advocacy.................................................................74Booker developments in the Second Circuit..................................................................75

February 16, 2005..............................................................................................................76Topical highlights from Day 2 of the USSC hearings...................................................76In today's great episode of how the Sixth Circuit turns.................................................77The importance of, and another great example of, district court Booker explanations. 78USSC hearings continue................................................................................................79Pondering a victim's role in sentencing.........................................................................79Another Booker ruling from the Sixth Circuit...............................................................80

February 15, 2005..............................................................................................................81Interesting midwestern Blakely perspectives.................................................................81There they go again.......................................................................................................81A few highlights from Day 1 of the USSC hearings.....................................................82Curious grants of new trials based on Booker...............................................................83An inside-the-Beltway Booker analysis.........................................................................83

February 14, 2005..............................................................................................................84Off to DC for a big week...............................................................................................84The next big hearing and some written USSC Hearing testimony................................85Sorting through the Circuit circus..................................................................................86

February 13, 2005..............................................................................................................87Thoughts on post-Booker data collection......................................................................87One needed quick fix: a new USSC Commissioner......................................................88

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The New Jersey Blakely saga continues........................................................................88The Ohio Blakely saga continues...................................................................................89Taking (insightful) stock of the post-Booker world......................................................90Another important (and opaque) 3d Circuit remand......................................................90

February 12, 2005..............................................................................................................91Celebrating a month of Booker......................................................................................91In other important sentencing news...............................................................................91Reports on recent Booker district court sentencings......................................................92More (a lot more) notable circuit Booker work.............................................................93

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March 12, 2005

Sentenced for three uncharged murdersIn his opinion for the majority in Blakely, Justice Scalia assailed the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."Though this expressed concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I discussed in this post last year the case of US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), in which a defendant in federal court was sentenced for a uncharged murder. And today I came across this news report of a federal sentencing in which the defendant pled guilty to drug and firearm charges, but received a life sentence after the judge at sentencing found that there was clear and convincing evidence that the defendant was involved in three related killings. Of course, had the remedy proposed by Justices Scalia and Stevens carried the day in Booker, the imposition of a longer term based on uncharged conduct would no longer be permitted in the federal system. But, because Justice Breyer's remedy prevailed in Booker, increasing a sentence based on such uncharged conduct is still permissible (though, now under advisory guidelines, no longer required).March 12, 2005 at 11:11 PM

March 11, 2005

Ninth Circuit's Ameline goes en banc!As Howard Bashman reports here, the Ninth Circuit today granted rehearing en banc in Ameline, the case in which the circuit had established a broad plain error standard for Booker cases (detailed here). The Ninth Circuit's order, which serves to vacate the panel's ruling, is available here, and all the paper related to the case can be accessed here. With this development, combined with the Fourth Circuit's intriguing rehearing decision in Hughes, leaves only the Third and Sixth Circuits applying the broad "presumption of prejudice" plain error standard (discussed more fully here).March 11, 2005 at 10:07 PM

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On the road againI am off to the airport yet again this afternoon, though this time the travel is for fantasy baseball and not work purposes. (Sleeper recommendations in the comments are always appreciated.) As is becoming a custom (as established here and here and here and here and here and here), I leave below some thematically organized and linked recent posts:SHEPARD DECISION AND COMMENTARY

Summarizing Shepard (and seeking state insights) Pondering some post- Shepard questions What is the scope of the prior conviction exception post- Shepard ? Criminal history disputes and Shepard issues

STATE BLAKELY DEVELOPMENTS AND COMMENTARYThe Indiana Supreme Court speaks on Blakely ! More reasons Smylie made me smile Smylie does not make everyone smile In epic showdown, Blakely trumps Harris in Minnesota If you’re gonna do it, do it right — right?

BOOKER CIRCUIT COURT DEVELOPMENTSThree-ring circus ... err, three-way circuit split The plain error madness continues in the 4th Circuit Tenth Circuit addresses Blakely retroactivity DC Circuit joins the Booker world Lots more Booker action in the Sixth Circuit

OTHER BOOKER DEVELOPMENTS AND COMMENTARYLatest compilation of post- Booker decisions Booker meets Roper and the rehabilitation of rehabilitation When will we see more post- Booker data? Ask and ye shall receive ... Booker data Handling Blakely / Booker habeas headaches Booker events not to be missed

March 11, 2005 at 02:37 PM

Smylie does not make everyone smileAs I noted in this post, there is a lot to say about the Blakely work by Indiana Supreme Court in its noteworthy Smylie decision from earlier this week (basics here). Helpfully,

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Michael Ausbrook at INCourts has this terrific post on the Smylie decision , which covers a lot of important jurisprudential issues and is none too kind to the work of the Indiana Supreme Court. For folks interested in Blakely state issues, Michael's post criticizing Smylie is a must-read, although I think his negativity about Smylie may reflect his (unreasonably?) high expectations for the work of a state court trying to sort through jurisprudential mess that lies in Blakely's and Booker's wake. (Among Michael's many astute comments is to attribute Smylie to part of "the damage the remedial opinion in Booker has done.")March 11, 2005 at 02:20 PM

Booker events not to be missedAs detailed last month in this post, there are no shortage of exciting events to enhance your Booker knowledge. But, as you update your Booker calenders, I want to spotlight two particular coming attractions.First, next Tuesday, March 15, ALI-ABA has arranged for this webcast/video-conference on "Federal Sentencing Guidelines after Booker and Fanfan." I am very pleased to be participating in this event, along with not only Professors Nancy King and Stephen Saltzburg, but also key "insiders" such as US District Judge Paul Friedman, who is a member of the Advisory Committee on the Federal Rules of Civil Procedure, Michael O'Neill, former USSC Commissioner and now Chief Counsel to the Senate Judiciary Committee, and Deborah Rhodes, who serves as Justice Department's ex-officio member on the USSC. I have already learned a lot from this group just by participating in the event's planning, and the technology facilitates participation no matter where one is located.Second, in San Francisco on May 25-28, 2005, the mother of all Booker gatherings will take place as part of the 14th Annual National Seminar on the Federal Sentencing Guidelines, which is a joint project of the Federal Bar Association and the US Sentencing Commission. As detailed in the brochure which can be downloaded below, nearly every big name in the Booker world will be participating in this program. I am heartbroken I have to miss this Booker event not to be missed because of a prior commitment (and my family might break me in other ways if I tried to change plans).Download 14th_annual_national_seminar_final_brochure_2005.pdfMarch 11, 2005 at 11:06 AM

Daily dose of Booker in the Sixth CircuitContinuing to clear its docket, the Sixth Circuit keeps up the pace with Booker rulings through two (unpublished) decisions released today: US v. Story, No. 03-6260 (6th Cir. Mar. 9, 2005) (available here) and US v. Ryan, No. 04-5401 (6th Cir. Mar. 10, 2005) (available here). Both cases involve plain-error remands. Neither seems to break new ground, but they reinforce the reality, noted here yesterday, that the treatment of plain

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error issues has settled down in the Sixth Circuit (in contrast to the madness which, as detailed here, now rages in the in the Fourth Circuit).UPDATE: Appellate Law & Practice has some additional coverage here.March 11, 2005 at 10:33 AM

In epic showdown, Blakely trumps Harris in MinnesotaThough not quite having the cinematic quality of, say, Godzilla versus Megalon, in the recent Minnesota case of State v. Barker, No. A04-1453 (Minn. App. Mar. 8, 2005) (available here), the state Court of Appeals held that, despite the fact that Harris v. US allows for judicial fact-finding in support of mandatory minimums, where the mandatory minimum sentence is greater than the presumptive guideline sentence, imposition of the higher "mandatory minimum sentence" sentence violates Blakely when based on facts not found by a jury. In other words, Blakely trumps Harris when they are in tension: Because the statute creates a mandatory-minimum sentence that replaces the ordinary presumptive sentence, Blakely v. Washington, 124 S. Ct. 2531 (2004) requires that the finding be made by a jury if the mandatory-minimum sentence exceeds the ordinary guidelines presumptive sentence.... [In this case] the mandatory-minimum statute functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence. Because it functions in the same way, we conclude, it should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely. March 11, 2005 at 01:09 AM

March 10, 2005

Criminal history disputes and Shepard issuesI believe the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here), and the possible demise of the Almendarez-Torres prior conviction exception, could prove so consequential not only because many states have sentence enhancers based on criminal history, but also because the facts surrounding a defendant's criminal are uncertain and subject to dispute more often than we might suppose. The letter brief from the NJ Blakely litigation posted here provides some flavor of these issues, but another great example comes from a brief sent to me by North Carolina attorney Bruce Cunningham. This brief, which I have been authorized to post and is available for downloading below, spotlights in various ways a range of the disputable issues that surround criminal history which may now bw subject to Shepard challenges. Download hadden_brief_with_shepard_issues.docMarch 10, 2005 at 03:39 PM

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Lots more Booker action in the Sixth CircuitI joked in my earlier review of yesterday's circuit court work that the Sixth Circuit was surprisingly Booker quiet yesterday. I see now from posts at Appellate Law & Practice that the Sixth Circuit is back at it today with a set of notable Booker rulings. For now I can only give the highlights, since I am busy with the great conference here at OSU on "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law" co-sponspored by my own Ohio State Journal of Criminal Law.

In US v. Bradley, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court appears to uphold a pre-Blakely appeal waiver. I have previously pondered the fate and future of appeal waivers after Booker in this post.

In Ballard v. US, No. 03-5117 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court appears to sustain a defendant's ineefective assistance claim based on counsel's failure to raise an Apprendi issue.

In US v. Barnett, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court denies the government's rehearing petition in the Circuit's leading plain-error case (Barnett background is here.) Thus, while the plain error madness rages on the in the Fourth Circuit (details here), it would now appear to be settled in the Sixth.

March 10, 2005 at 01:12 PM

More on Medellin issuesIn this post I spotlighted dynamic developments surrounding the the Supreme Court's consideration in Medellin v. Dretke of the right of foreign nationals on death row to meet with a consular officer from their home country. Adding timely intrigue to these matters, a reader has alerted me that this morning the Oregon Supreme Court issued an opinion in State v. Sanchez-Llamas, No. S51289 (Ore. Mar. 10, 2005) (available here), which plows related ground. In Sanchez-Llamas, the Oregon Supreme Court rejects the a claim to suppress evidence based on a violation of the "right to consular notification and communication, as guaranteed by Article 36 of the Vienna Convention on Consular Relations (VCCR)," by holding that "Article 36 of the VCCR does not create rights that individual foreign nationals may assert in a criminal proceeding." Here is the Court's interesting final footnote:

Our legal conclusion in this case is consonant with every other state and federal case of which we are aware that has addressed the issue. [citations omitted.] We also note that the Supreme Court of the United States on December 10, 2004, granted certiorari in Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004). That case, which is set for argument on March 28, 2005, involves certain of the issues that we decide today.

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March 10, 2005 at 12:33 PM

More reasons Smylie made me smileThere is a lot to say about yesterday's Blakely work by Indiana Supreme Court in its Smylie decision (basics here). Thanks to The Indiana Law Blog's coverage here, I can link to press stories about Smylie from the Indianapolis Star and the AP. In addition, Michael Ausbrook at INCourts has interesting posts covering Smylie here and here . Though Smylie is of particular concern for Indiana lawyers, this comment spotlights that it could be a very significant precedent for other state courts working through a range of Blakely issues. Though I will need subsequent posts to discuss the intriguing jurisprudential aspects of Smylie, I wanted first to spotlight the two amusingly snarky comments in the Smylie court's discussion of the Supreme Court's work in Blakely:1. Early on in describing Blakely, the Smylie court states: "While many who read Apprendi deduced that 'statutory maximum' meant 'statutory maximum,' the Blakely majority chose to define it as 'the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'"2. After fully explaining Blakely, the Smylie court states: "Whether [Blakely] represents sound jurisprudence or policy is of no moment for us under the Supremacy Clause, and we cannot see any grounds for sustaining Indiana's sentencing scheme given the Blakely holding."March 10, 2005 at 09:29 AM

A morning shot of Booker circuit actionEven though yesterday was — gasp — a day without a Sixth Circuit Booker ruling, we did have the big, crazy Fourth Circuit plain-error news and also another group of Booker circuit decisions. As suggested in yesterday's review here of circuit cases from earlier this week, it is becoming ever more difficult to keep up with all the circuit Booker action. Here is a very quick review of yesterday's notable rulings:The Third Circuit in US v. Benjamin, 2005 WL 546647 (3d Cir. Mar. 09, 2005), and US v. Pinkston, 2005 WL 546648 (3d Cir. Mar. 09, 2005), continued its practice of sending all Booker issues back to the district court. In Benjamin, though, the Third Circuit did affirm a restitution order that seems to rest on judicial fact-finding without any consideration of Blakely issues that might be implicated.The Seventh Circuit, and particularly Judge Easterbrook, used the rejection of a habeas claim in Knox v. US, 2005 WL 545269 (7th Cir. Mar. 09, 2005), to discuss a number of the Supreme Court's recent sentencing precedents. Along the way, the Knox court makes the seemingly significant assertion, citing Supreme Court precedents, that "judicial resolution of a factual dispute that should have been presented to a jury is not a 'structural error' that requires automatic reversal."The Eighth Circuit was able to affirmed two sentences: in US v. Sayre, 2005 WL 544819 (8th Cir. Mar. 09, 2005), the court ducked the plain-error/harmless-error debate

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by concluding that, whatever the review standard, "the result is the same for Sayre ... [because] while the district court followed a sentencing scheme that is no longer mandatory, doing so did not affect Sayre's ultimate sentence in this case"; In US v. Quinn, 2005 U.S. App. LEXIS 3903 (8th Cir. Mar. 09, 2005), the court affirmed a 10-year mandatory sentence based on a prior conviction (notably, without mentioning Shepard).March 10, 2005 at 08:28 AM

The meddling resulting from MedellinAs discussed here a few months ago, the Supreme Court's decision to take on the case of Medellin v. Dretke, which concerns the right of foreign nationals on death row in the US to meet with a consular officer from their home country, seemed like an important development in the intersection of international law and the death penalty. (See this old background piece by Tony Mauro.) And, as is being extremely well documented by SCOTUSblog, the ripple effect of just the Supreme Court's decision to take this case is remarkable. Because I have enough trouble keeping tract of domestic law, I will just urge readers interested in this subject to jump to the great Medellin coverage to be found at the SCOTUSblog here and here and here and here. In addition, How Appealing has some of yesterday's coverage of developments here, and this New York Times article provides the latest news.March 10, 2005 at 07:46 AM

March 9, 2005

The Indiana Supreme Court speaks on Blakely!In what appears to be the most comprehensive state supreme court decision to date (and the first major post-Booker state supreme court ruling), the Indiana Supreme Court today has ruled on Blakely's applicability to Indiana's sentencing structure in Smylie v. Indiana, No. 41 SO 1-0409-CR-408 (Ind. Mar. 9, 2005) (available here courtesy of The Indiana Law Blog, which already has highlights here).Smylie appears to be, from a quick skim, a very thorough and thoughtful decision (and I was very pleased and flattered to see this blog getting a "shout out" in footnote 12 of the Court's opinion, although The Indiana Law Blog notes here that I am slightly mis-cited). The Indiana Supreme Court in Smylie has held Blakely applicable to Indiana's laws and has concluded that Blakely-ization (and not Booker-ization) is the appropriate remedy — i.e., the Court rejects the suggestion to make its statutory sentencing structure advisory and instead calls for jury determinations of sentence enhancing facts.The Smylie decision also covers some retroactivity issues and is certainly today's must-read for Blakely addicts. I am already looking forward to Marci Oddi's commentary at The Indiana Law Blog and also Michale Ausbrook's at INCourts.

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March 9, 2005 at 04:25 PM

The plain error madness continues in the 4th CircuitAs detailed in this brief order, the panel of the Fourth Circuit that issued its broad plain error ruling in Hughes (background here) has granted the government's petition to rehear the case. That would suggest, I think, that the Fourth Circuit's placement in the remarkable three-way circuit split on plain error (detailed here) is now back in play. Here is the full text of the (unusual?) order:

Panel rehearing of this case is granted at the direction of the Court. Entered for a panel composed of Chief Judge Wilkins, Judge Traxler, and Judge Gregory.

Ironically, when I first went to the Fourth Circuit's website to look for more information, I found an unpublished disposition in US v. Calloway, No. 03-4906 (4th Cir. Mar. 8, 2005) (available here), which vacates two defendants' sentences and remands "for proceedings consistent with Hughes." A quick Westlaw search indicated that perhaps more than 10 cases have been remanded on the basis of Hughes. I'm not sure what "panel rehearing" might mean for these cases or others in the Fourth Circuit pipeline, although I have been told that "the Fourth Circuit's rules (Internal Operating Procedure 40.2) state that if a panel rehearing is granted, the original judgment is vacated and the case will be reheard by the original panel."In addition, and adding to what is becoming an almost comical story, now also appearing on the Fourth Circuit's website is US v. Gilchrist, No. 03-4379 (4th Cir. Mar. 8, 2005) (available here), where the Fourth Circuit responds to a defendant's petition for rehearing by stating "the panel is of the opinion that Gilchrist's sentences must be vacated and the case remanded for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005), which was decided after the panel opinion issued in this case." Then, in a 12-page concurrence(?!?), Judge Luttig explains in detailed terms why he believes "that our decision in United States v. Hughes was fundamentally flawed."Anyone with additional information or insights about these notable Fourth Circuit developments (or about the still pending rehearing petition in the Ameline case from the Ninth Circuit) are encouraged to report in the comments or via e-mail what they know.March 9, 2005 at 03:20 PM

Ask and ye shall receive ... Booker dataIn this post yesterday, I noted my eagerness for post-Booker data. Thanks to the kind folks at the US Sentencing Commission, I now have (and can share for downloading below) the USSC's "last complete data cut" which was prepared on February 28 and reflects all post-Booker cases received by the USSC as of February 17. (These materials are also now posted on the USSC's Booker / Fanfan page .)These data reports cover 2,056 total cases, though in the USSC's analysis 70 cases had to be excluded due to incomplete or missing information. Thus, for the five weeks post-Booker, we have nearly 2000 cases to chew on (which is, of course, only one-third of

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what would have moved through the system if it were operating at a pre-Booker pace of 1,200 cases/week). The data is fascinating and the memos below are so clear (and brief) that I will let them speak for themselves. Importantly, USSC folks indicated that the "next data cut" will be likely taken around the end of this month.Download ussc_booker_data_memo_022805.pdf Download ussc_fy02_and_postbooker_district_counts_030105.pdfMarch 9, 2005 at 11:32 AM

Booker meets Roper and the rehabilitation of rehabilitationThe fascinating Booker work being done in the district courts merits as much attention as the Supreme Court's work in Shepard (basics summarized here, commentary here and here) and the steady stream of circuit dispositions (discussed and linked here). I see on-line this morning two remarkable district court rulings, each of which provides intriguing justifications for refusing to follow the federal guidelines' severe career offender enhancements. In US v. Naylor, 2005 WL 525409 (W.D. Va. Mar. 07, 2005) (also available here), Chief US District Judge James Jones discusses and quotes from the Supreme Court's recent Roper decision to discount the defendant's prior convictions for robberies committed as a juvenile. In a thoughtful ruling (which echoes points I made here about Roper's possible impact on non-capital sentencing), Judge Jones carefully explains in Naylor why only legal technicalities suggest the application of the career offender enhancements and thus "a reasonable sentence for Naylor is 120 months imprisonment, within the sentencing range had he not been determined to be a career offender." In US v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb. 22, 2005), Judge Alvin K. Hellerstein explains, when imposing a 14-year sentence, his rationale for "departures from the strictures of Career Offender punishments that I considered not entirely applicable to Carvajal's offenses and criminal history." Judge Hellerstein carefully explains that career offender enhancements would raise the defendant's sentence from a range of 63 to 78 months to a range of 262 to 327 months. He then decides that neither range is appropriate in light of 3553(a) and Booker's instructions:

In my opinion, a 168 month (14-year) term of custodial punishment of 168 month would be just punishment. Joseph Carvajal is 34 years old, and will be 48 years old when he emerges from prison (or 15% less if he wins reductions for good behavior). Rehabilitation is also a goal of punishment. 18 U.S.C. § 3553(a)(2)(D). That goal cannot be served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary condition of mankind, for we are all created in the image of God. A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more severe than that necessary to satisfy the goals of punishment.

March 9, 2005 at 07:30 AM

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DC Circuit joins the Booker worldIssuing its very first Booker opinion, the DC Circuit yesterday in US v. Coumaris, No. 03-3024 (D.C. Cir. Mar. 08, 2005) (available here), did not have to struggle much because the government itself "moved to vacate Coumaris' sentence and to remand for resentencing." In Coumaris, the government conceded that the defendant had preserved the Sixth Amendment issue through objections to his PSR. The DC Circuit then explains:

This means that the Booker challenge here is governed by the harmless error standard appropriate for constitutional error, which the Government states it cannot satisfy. That is, the government concedes that it cannot demonstrate "beyond a reasonable doubt that the error complained of did not contribute to the [sentence] obtained."

The government's harmless error concession seems notable, since the defendant's 48-month sentence presumably was not at the bottom of a guideline range. Interestingly, the Coumaris court expressly rejects the defendant's request to "resolve his specific challenges to the district court's application of the Guidelines before remanding." The DC Circuit asserts, that because "the district court might impose a different sentence on remand, and because the parties might choose not to appeal that sentence," addressing now "objections to the court's original guidelines calculations would be premature at best and unnecessary at worst." However, as I discussed here in connection with the Sixth Circuit's ruling in Hamm, this dodge may make life harder for the district court at resentencing: the sentencing judge is left uncertain about whether it has calculated the applicable guideline range properly, and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.March 9, 2005 at 06:41 AM

Tenth Circuit addresses Blakely retroactivityStanding out among other circuit dispositions this week is the Tenth Circuit's discussion of Blakely's retroactivity in US v. Price, 2005 WL 535361 (10th Cir. Mar 08, 2005). The petitioner in Price had failed on his habeas claim in the wake of Blakely, but he sought rehearing after Booker, and the Tenth Circuit denies the rehearing petition with an opinion that provides an extended explanation for why "Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."The Tenth Circuit thus becomes, I believe, the third circuit to address directly Blakely/Booker retroactivity after Booker, joining the Seventh Circuit in McReynolds and the Sixth Circuit in Humphress . Unlike the plain-error splits for cases still on direct appeal, the circuits have been uniform to date in rejecting Blakely/Booker challenges in cases that have become final.UPDATE: As Adam kindly notes in the comments to this post and as another fine reader has brought to my attention, I keep forgetting that the Eleventh Circuit in Varela has also ruled that that Blakely and Booker are not retroactively applicable to cases on collateral

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review. So, we have four circuits that have officially spoken on this issue — the 6th, 7th, 10th and 11th — and I suspect that it is only a matter of time before the other eight follow suit.March 9, 2005 at 06:09 AM

Circuits keeping Booker busyWith my sentencing focus having been Shepard-ized this week (Shepard basics are summarized here, commentary here and here), I have gotten a bit behind tracking Booker action in the circuits. But a quick check on-line reveals that the circuits have already rendered nearly a dozen Booker rulings this week. The only especially noteworthy rulings result from the DC Circuit's first foray into the Booker world (discussed here) and the Tenth Circuit's discussion of retroactivity (discussed here), which are cover in other posts. Here is a quick run-down of what's come this week from other circuits (in addition to the Sixth Circuit's ruling in Hamm discussed here):The Third Circuit through US v. Kleinpaste, 2005 WL 524949 (3d Cir. Mar. 07, 2005), continues its trend of kicking all Booker issues back to the district courts, stating simply "the sentencing issues appellant raises are best determined by the district court in the first instance." The Fourth Circuit maintains its fidelity to its Hughes approach to plain error by remanding for resentencing in US v. Johnson, 2005 WL 526889 (4th Cir. Mar. 08, 2005). However, in US v. Pierce, 2005 WL 523364 (4th Cir. Mar. 07, 2005), the court affirms a sentence because the defendant only challenged its computation and not its constitutionality, which prompts Judge Gregory in dissent to assert that the court should "sua sponte recognize the plain Booker error in this case." The Eighth Circuit in two cases, US v. Edwards, 2005 WL 517019 (8th Cir. Mar. 07, 2005) and US v. Cotton, 2005 WL 525226 (8th Cir. Mar. 08, 2005), affirmed sentences involving the revocation of supervised release, and stated in Edwards that Booker's "effect on sentences imposed for supervised release violations is far less dramatic" than its impact on standard guideline sentencing.The Ninth Circuit in US v. Luna, 2005 WL 518721 (9th Cir. Mar. 07, 2005), determined that the district court properly calculated the defendant's guideline sentence, but still remanded "for discretionary reconsideration of the sentence in light of Booker and Ameline."March 9, 2005 at 05:39 AM

March 8, 2005

What is the scope of the prior conviction exception post-Shepard?

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In this post pondering the state of sentencing following the Supreme Court's work in Shepard (summary here), I wondered whether state supreme courts considering Blakely cases will start to get Shepard-focused supplemental briefs. This question was answered quickly, as today I received from attorney Steve Sanders — who has been involved in New Jersey's Blakely cases as an amicus for the Association of Criminal Defense Lawyers of New Jersey — a copy of a letter brief filled today in the Supreme Court of New Jersey highlighting the significance of Shepard in a pending case.This New Jersey Shepard letter brief can be downloaded below, and it emphasizes the oblique statement from Justice Souter's opinion in Shepard concerning the scope of the Almendarez-Torres "prior conviction exception." Recall this passage from Shepard (previously discussed here):

While the disputed fact [in Shepard's case] can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.

I have been struggling with exactly what this means for lower courts now considering the scope of the Almendarez-Torres prior conviction exception. I think Shepard stands for the proposition that the exception is relatively narrow (i.e., the exception does not extend to facts "too far removed from the conclusive significance of a prior judicial record"). And yet, I also read this passage to imply that the Almendarez-Torres prior coviction exception may cover more than just the bare fact of a prior conviction (i.e., the exception perhaps does extend to facts which are very close to "the conclusive significance of a prior judicial record"). I believe a number of states have sentence enhancers that turn on whether an offender was on parole at the time of his offense or on whether the defendant previously served a prison term. Are such facts close enough to "the conclusive significance of a prior judicial record" to fall within the Almendarez-Torres prior conviction exception or are they "too far removed" and "too much like the findings subject to Jones and Apprendi"? I guess only future Supreme Court decisions will tell.Download nj_shepard_letter_brief.pdf March 8, 2005 at 05:27 PM

More for your reading pleasure (Booker and Booker-free)The kind folks at TalkLeft here suggest I am a source for "Blakely and Booker Articles and Advice." Hoping to earn (and perhaps broaden) that reference, I have two more articles to spotlight today. (Articles spotlighted previously in recent days are here and here.) The first is "all about Booker" and provides a practitioner-friendly review of the decision and subsequent caselaw, the other concerns collateral consequences and provides an astute academic perspective on a very important, but largely under-examined, criminal justice issue.

The practitioner-oriented Booker piece is called "All about Booker" and comes courtesy of experienced practitioners Alan Ellis and James H. Feldman, Jr. It covers both basic and advanced Booker ground and seems current through last

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week's major developments in the Booker caselaw. Download it here: Download ellis_and_feldman_all_about_booker.pdf

The academic piece is entitled "Enforcing State Law in Congress's Shadow" and comes from Professor Robert Mikos. An abstract and the full paper can be accessed here. As the abstract explains, the article examines "congressional statutes that impose federal sanctions on individuals convicted of state crimes" and suggests these sanctions "may profoundly influence state criminal proceedings."

March 8, 2005 at 03:26 PM

When will we see more post-Booker data?A few weeks ago, I was already eager for more post- Booker data . And now, as we approach the two month anniversary of Booker, my eagerness is evolving into (perhaps unhealthy and unjustified?) impatience. Were the federal sentencing system operating under "normal" conditions, roughly 10,000 sentences would have been imposed in the two months since Booker. And thus, even if the system post-Booker is operating only at half its normal speed, we still should have a universe of 5000+ cases (and at least a couple hundred in each circuit) from which to start drawing some preliminary insights.Moreover, is seems plausible that the federal sentencing system might be back to operating at its "normal" 1,200 sentencing per week clip. Though the plain-error mess continues to produce interesting circuit case law, I surmise that the district courts are settling into the post-Booker world. (It is worth recalling here that, as the US Sentencing Commission detailed in a "Preliminary Comparison of Case Submissions in July and August 2003 and 2004" available here, the federal courts still imposed over 10,000 sentences in the confusing two months after Blakely.) As noted before, this USSC webpage indicated that the USSC has a public hearing scheduled for April 12, which is (coincidentally?) the exact three-month anniversary of Booker. I think we could expect more data from the USSC in conjunction with that hearing, but I sincerely hope we get at least of glimpse of the developing sentencing patterns before that time.March 8, 2005 at 12:51 PM

If you’re gonna do it, do it right — right?I jokingly call Blakely the case that launched a thousand law review articles, and I have a new one to spotlight (on the heels of the numerous articles noted here). J.J. Prescott and Sonja Starr have an interesting piece entitled "Improving Criminal Jury Decision-Making After the Blakely Revolution," which to proposes a model for sentencing-stage jury proceedings that would foster improved decision-making by juries. An abstract and the full paper can be accessed here. As detailed in their abstract, Prescott and Starr suggest that effective jury decision-making post-Blakely calls for "bifurcation of proceedings, partial application of the rules of evidence, formulation of special verdict forms in certain specific ways that will

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minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures." The issues and concerns spotlighted in this paper will become even more pressing if, as Shepard hints (summary here, questions here), juries may some day have to consider prior conviction facts as well as offense facts that can enhance sentences.In the immortal words of Wham!, "If you're gonna do it, do it right — right?"March 8, 2005 at 11:38 AM

Back to the Sixth Circuit Booker beatI have a lot more to say about the Supreme Court's work in Shepard (summary here, questions here), but the Sixth Circuit, as it seemingly does every day, gives us reason to return to the Booker beat. Today's entry is US v. Hamm, No. 03-5658 (6th Cir. Mar. 8, 2005) (available here), which does not break any new ground, but covers the Circuit's now established plain-error ground fairly thoroughly. (A full review on the three-way plain-error circuit split is provided here.)Hamm is notable in part because we see the Sixth Circuit remanding for resentencing despite the absence of a Sixth Amendment problem in the case or any preserved objection on Apprendi-Blakely-Booker grounds. It is also notable because the Sixth Circuit ducks a seemingly important issue concerning whether ex post facto principles preclude the application of the PROTECT Act's limits on downward departures in a sentencing for pre-PROTECT Act criminal conduct. The Hamm court asserts: "We need not address the merits of Hamm's [ex post facto] arguments, however, because we conclude that the sentence imposed by the district court is invalid in light of Booker."In one sense, the Hamm court is being prudential: if Booker requires resentencing anyway, the court can (and perhaps should) avoid adjudicating the constitutional issue raised by Hamm's ex post facto argument. But, in another sense, the Hamm court is making life harder for the district court: the sentencing judge is left uncertain about whether ex post facto considerations might impact how it can and should calculate the applicable guideline range (including departure considerations), and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.March 8, 2005 at 10:42 AM

Pondering some post-Shepard questionsI continue to ruminate over the Supreme Court's opaque work in Shepard and its tantalizing hints that the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule may be eliminated in some future case (the Shepard basics are summarized in this post). Here are just a few questions jumping to mind:1. A number of state supreme courts considering Blakely cases received or asked for supplemental briefs in the wake of Booker. Will there now also be Shepard-focused supplemental briefs? (Consider this comment about the impact of Shepard on New Jersey's Blakely litigation.)

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2. Might state and federal prosecutors, fearing the eventual demise of the Almendarez-Torres "prior conviction exception," start regularly including prior conviction facts in at least some indictments? Put another way, might some indictments now get "Shepard-ized"? (True law geeks like me should enjoy that pun.)3. How long will it take for the Supreme Court to grant cert. (and then decided) what Justice Thomas calls "Almendarez-Torres' continuing viability"? Since Blakely, as I explained here, this issue has been of critical importance, but I now fear we may have to wait another year or longer before we get a resolution. 4. Will Justice Thomas' statement that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided" and his lament that "[i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres" have any traction in lower courts? Might a state Supreme Court consider using state constitutional law to eliminate the exception rather than await the work of a fickle US Supreme Court.March 8, 2005 at 07:12 AM

March 7, 2005

Helpful accounts of ShepardI have tried my best to summarize the impact of the Supreme Court's opaque work today in Shepard v. US in this post. Helping to add light are astute accounts of Shepard here from the AP and here from the Second Circuit Blog. (UPDATE: And here are a New York Times account , a Pittsburgh Post-Gazette account and a Wall Street Journal account of Shepard.)In addition, I think the questons posed here by my colleague Alan Michaels help spotlight the craziness that is Shepard. (And, in a future post, I hope to set forth a set of post-Shepard questions rattling in my brain this evening.)March 7, 2005 at 09:50 PM

Today's other SCOTUS sentencing rulingBecause I have been focused on today's SCOTUS GVRs and the Shepard craziness , I have not yet completely taken in the Supreme Court's other notable sentencing decision today. In Wilkinson v. Dotson, No. 03-287 (S. Ct. Mar. 7, 2005) (available here), the Court ruled 8-1 that state prisoners challenging the constitutionality of state parole procedures are not limited to pursuing relief via federal habeas, but may bring a § 1983 action for declaratory and injunctive relief. This AP report provides a few more details.The intricacies of these issues actually make Apprendi doctrines seem simple, and the ruling makes me wonder whether a number of state defendants might now try to challenge a range of state sentencing procedures via § 1983 actions. Readers are highly

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encouraged to use the comments to detail whether they think Dotson might bring a new wave of § 1983 litigation.UPDATE: Mike over at Crime & Federalism has two great posts on Dotson: this one reviews the basics of the case; this one suggests, rightly I believe, that we may see a slew of § 1983 actions challenging parole procedures.March 7, 2005 at 05:32 PM

Summarizing Shepard (and seeking state insights)The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment). Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:

The Shepard scramble discusses the Court's opinion and seeks to explain its significance concerning the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.

Just when you thought it was safe discusses Justice Thomas' concurrence in Shepard which calls for the elimination of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.

O'Connor's Apprendi laments discusses Justice O'Connor's dissent in in Shepard which complains about the prospect of extending the Apprendi rule "into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed."I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts. In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system. But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated. But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important. But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law. March 7, 2005 at 01:46 PM

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O'Connor's Apprendi laments in her Shepard dissentIn trying to make sense of today's Shepard ruling (basics here) for our post-Blakely world, I have covered Justice Thomas's concurrence in this post and Justice Souter opinion for the Court in this post. Now let me complete the series with the work of Justice O'Connor in dissent. Here are her points (with citation mostly omitted) about the now lively debate over the future of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi rule:

I strongly suspect that the driving force behind today's decision is not Taylor itself, but rather "[d]evelopments in the law since Taylor." Ante, at 9. A majority of the Court defends its rule as necessary to avoid a result that might otherwise be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000), and related cases. I have criticized that line of cases from the beginning, and I need not repeat my reasoning here. It is a battle I have lost. But it is one thing for the majority to apply its Apprendi rule within that rule's own bounds, and quite another to extend the rule into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed. Yet today's decision reads Apprendi to cast a shadow possibly implicating recidivism determinations, which until now had been safe from such formalism. Even in a post-Apprendi world, I cannot understand how today's case raises any reasonable constitutional concern. To the contrary, this case presents especially good reasons for respecting Congress' long "tradition of treating recidivism as a sentencing factor" determined by the judge, Almendarez-Torres v. United States, 523 U. S. 224, 243 (1998), rather than as a substantive offense element determined by the jury.... In short, whatever the merits of the Apprendi doctrine, that doctrine does not currently bear on, and should not be extended to bear on, determinations of a defendant's past crimes, like the ACCA predicates at issue in Shepard's case. The plurality's concern about constitutional doubt, ante, at 10–12, and JUSTICE THOMAS' concern about constitutional error, ante, at 2–3, are therefore misplaced.

March 7, 2005 at 12:43 PM

The Shepard scramble of the "prior conviction" exceptionI have created a new Almendarez-Torres and the prior conviction exception category archive because I fear that the Supreme Court's Shepard ruling today (basics here, first commentary here) will open up a huge new can of litigation worms. I have detailed in a number of pre-Booker posts the significance the "prior conviction exception," especially for states as they deal with the Blakely fall-out (examples here and here and here, collected here), and both the ruling and the dicta in Shepard make this confusing area of the law even more confusing. Though Shepard is already making my

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head hurt, I hope to explain the case's importance and why it makes the post-Blakely world, especially for the states, even messier.First, a great many sentencing determinations depend on judicial findings of prior conviction facts (even in states without guideline systems), and a great many pre-Blakely sentences have been affirmed post-Blakely by relying on the prior conviction exception (see, e.g., the recent Ordaz decision by the Third Circuit ). Thus, a great many past, present and future sentences may hinge on the continued validity of the Almendarez-Torres "prior conviction exception." Second, in addition to the post-Blakely questions about the validity of the "prior conviction exception," there has also been great uncertainty concerning the scope of the exception. Indeed, a number of lower courts have split over (a) whether the exception only applies to the fact of a prior conviction or more broadly to surrounding facts (such as whether an offender was on parole), and (b) whether juvenile convictions (which themselves did not include a jury right) fall within the exception. (See generally this post on an Indiana case dealing with these issues or my recent Conceptualizing Blakely article which talks through some of these issues.)Third, the Shepard ruling is opaque about both the validity and scope of the Almendarez-Torres "prior conviction exception." As detailed in this post, Justice Thomas, who in 1998 provided the key fifth vote for allowing judicial fact-finding of prior convictions in Almendarez-Torres, is trying to declare the "prior conviction exception" dead for all purposes. But four other Justices — the Almendarez-Torres dissenters, no less — seem to be keeping the "prior conviction exception" on life support for now, but its fate and application seem uncertain at best. Here are the key passages from Justice Souter's opinion for the Court in Shepard, the first of which seems to concern the scope of the prior conviction exception, the second (from a footnote) concerns its future validity:

[T]he sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute....The dissent charges that our decision may portend the extension of Apprendi v. New Jersey, 530 U. S. 466 (2000), to proof of prior convictions, a move which (if it should occur) "surely will do no favors for future defendants in Shepard's shoes." Post, at 11. According to the dissent, the Government, bearing the burden of proving the defendant's prior burglaries to the jury, would then have the right to introduce evidence of those burglaries at trial, and so threaten severe prejudice to the defendant. It is up to the future to show whether the dissent is good prophesy,

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but the dissent's apprehensiveness can be resolved right now, for if the dissent turns out to be right that Apprendi will reach further, any defendant who feels that the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.

March 7, 2005 at 12:11 PM

Just when you thought it was safe to go back into the (cert. pool) waterPlease excuse the silly Jaws 2 reference, but I am suffering a bit of the shakes after now having had a chance to read the the Supreme Court's opinions in Shepard, all of which can now be accessed at this link. Because the facts and law surrounding the actual holding in Shepard are complicated and opaque, few may instantly realize its block-buster status. But Shepard is huge, because it (1) seems to limit the scope of the Almendarez-Torres "prior conviction exception" to Jones-Appendi, (2) hints that the Alemedarez-Torres "prior conviction exception" will be overruled soon, and yet (3) leaves Almendarez-Torres "prior conviction exception" alive, though now it is bloodied and perhaps gasping its final breath.I will need future posts to explain why Justice Souter's opinion for the Court so terriby muddies the current status of the Almendarez-Torres "prior conviction exception." For now, let me spotlight that the four Justices speaking for the Court in Shepard, who are keeping the Almendarez-Torres "prior conviction exception" just barely alive, were the four dissenters in the Almendarez-Torres. The key fifth vote upholding judicial factfinding of a prior conviction and thus creating what is now the "prior conviction exception" to Jones-Appendi, back in 1998, was Justice Thomas. Here's what Justice Thomas says today in his Shepard concurrence about the Almendarez-Torres "prior conviction exception":

Almendarez-Torres ... has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U. S., at 248–249 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520–521 (THOMAS, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres' continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental "imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements." Harris v. United States, 536 U. S. 545, 581–582 (2002) (THOMAS, J., dissenting).

March 7, 2005 at 11:30 AM

SCOTUS rules in Shepard (and muddies the prior conviction waters)As if the post-Blakely, post-Booker sentencing seas were not choppy enough, today the Supreme Court muddied the waters some more by finally issuing its opinion in Shepard

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v. United States, No. 03-9168, which concerns a judge's authority to find certain prior conviction facts. Justice Souter opinion for the Court (in part) is available here, the opinion Justice Thomas concurring in part and concurring in the judgment is avaialble here, and the opinion of Justice O'Connor dissenting is available here.This case, somewhat unsurprisingly, has produced the Blakely line-up of Justices (though the Chief Justice did not participate). And, as Lyle Denniston explains here in his helpful and astute summary, the Shepard ruling raises "the prospect that the Court may be on the verge of removing the last remaining exception to the Apprendi ban on judicial fact-finding on enhanced sentences — that is, prior convictions."More commentary — a lot more — to follow soon. March 7, 2005 at 10:50 AM

Still more SCOTUS GVRsIn what is becoming a weekly tradition, this morning we get a bunch more Booker-inspired GVRs from the Supreme Court (previous examples are here and here and here). The SCOTUS order with this morning's 20-odd Booker-remanded cases is available at this link (where one can also see that we now also have some Roper-inspired GVRs).March 7, 2005 at 10:27 AM

Still more Booker from the Sixth CircuitWe can always count on the Sixth Circuit to get our sentencing day off and running. This morning the Circuit released its unpublished decision in US v. Howard, No. 03-1786 (6th Cir. Mar. 4, 2005) (available here), which includes some interesting Booker issues.Howard is perhaps most interesting because of the absence of any harmless error analysis. In Howard, two defendants challenged sentences based on judicial fact-finding for guideline enhancements, and the Sixth Circuit remands for resentencing on Booker grounds. Without considering harmless error issues, the Howard court simply concludes that remands are appropriate because the defendants "received, under a mandatory regime, a sentence above the maximum sentence [they] could have received based solely on the jury verdict or [their] own admissions."In addition, the government in Howard cross-appealed to challenge the "district court's decision to grant [a third defendant] a 12-month downward departure for time served on a state conviction." The Sixth Circuit in Howard decides that the downward departure was improper and concludes it must vacate and remand "for re-sentencing without benefit of the 12-month departure, and without treating the correct guideline range as mandatory." This result on the government cross-appeal has me a bit puzzled post-Booker, since I think the Sixth Circuit could have (perhaps should have) considered affirming the third defendant's sentence based on a form of harmless error analysis, despite its conclusion that the downward departure was improper. A district judge is never obliged to downward depart; such a decision always involves an exercise of a district court's discretion. Thus, the real impact of the district court's (apparently erroneous) conclusion

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that there was authority to depart essentially put the district judge into a "Booker-like" world in which the calculated guideline range had to be considered, but not followed. If some defendants are going to have to establish post-Booker that the pre-Booker result would now be different to secure resentencing, shouldn't the government bear that same burden when it is appealing a pre-Booker sentence?March 7, 2005 at 10:07 AM

March 6, 2005

Three-ring circus ... err, three-way circuit splitI joked here a few weeks ago that the federal circuits' disparate handling of Booker "pipeline cases" was developing into a twelve-ring circus. However, with the Seventh Circuit's work in Paladino and the Fifth Circuit's work in Mares , now "just" a three-way circuit split on plain error has become pretty clearly defined. Updating my circuit review here from a few weeks ago, here's the simplified plain-error basics:The "defendant must prove" plain error standard. The 1st, 5th and 11th Circuits are applying the most rigorous plain error standard by requiring defendants to make a specific showing of prejudice from the application of mandatory guidelines (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. The "let's ask when in doubt" plain error standard. The 2nd and 7th Circuits have adopted the general rule that, whenever the impact of the guidelines being advisory is unclear, the Circuit will ask the sentencing judge whether a defendant was prejudiced by advisory guidelines so as to satisfy the third step of plain-error review. The "presumption of prejudice" plain error standard. Though only clearly articulated in the 6th Circuit, it seems the 3rd, 4th, 6th, and 9th Circuit have all adopted a general presumption that a defendant was prejudiced by being sentencing pursuant to advisory guidelines so as to satisfy the third step of plain-error review. Significantly, the government has sought en banc reconsideration of the plain error rules established by Hughes in the 4th Circuit and Ameline in the 9th Circuit . But the rulings by the 2d, 5th and 7th Circuits (and maybe also the 3d Circuit) have all come through quasi-en banc collective decision-making procedures, so it appears that these circuit splits are firmly entrenched. (It also remains to be seen where the 8th, 10th and DC Circuits will place themselves. As detailed here, both the 8th and 10th Circuits have en banc oral arguments scheduled for this week.)I have speculated previously here and here about whether the Supreme Court or any other institution will seek to clean up this plain error mess. In a system purportedly designed to achieve a measure of sentencing uniformity, the plain error circuit splits — which may be a sign of other significant post-Booker circuit splits still to come — are certainly disconcerting.March 6, 2005 at 10:30 PM

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Handling Blakely/Booker habeas headachesIn this post, I noted the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year, and spotlighted how in this memo the Judicial Conference details its views of the cost impact of Booker. Though there are many notable features of the memo, I found especially intriguing this estimate of number of possible federal habeas actions in the wake of Booker:

It is estimated that 12,000 to 18,000 new filings could be lodged under 28 U.S.C. § 2255, attacking an original sentence and asking the district court which imposed the sentence to vacate, set aside, or correct the sentence. These filing estimates are based on the Bureau of Prisons population, reduced for the inmates who already received reduced sentences under 5K1.1 (substantial assistance departure), inmates with less than six months to serve, and inmates who received no enhancements.

If the 12,000 to 18,000 estimate is supposed to quantify the number of inmates who might seek habeas relief, this number seems quite low. There are roughly 180,000 persons in federal prison and perhaps, I would guess, another 100,000 on probation or supervised release. And even federal convicts who received a 5K1.1 departure, or have less than six months to serve, or received no enhancements based on judicial fact-finding may have a sound legal reason to try to take advantage of the Booker to reduce the time they are subject to federal supervision. That said, it is also possible, especially if the circuits continue to hold that Booker is not retroactive (as did the Seventh in McReynolds and the Sixth in Humphress ), that a much smaller universe of prisoners will actually file federal habeas actions. Of course, none of this head-counting considers the (potentially much larger) universe of state defendants who are serving sentences rendered constitutionally problematic by Blakely who may file federal habeas actions if/when they do not get relief from state courts. As detailed here and here, for example, the Hawaiian state and federal courts are now in a habeas tussle over Apprendi's applicability to Hawaii's sentencing laws.Habeas doctrines and numbers aside, a serious commitment to Constitutional principles suggests, as I have argued here and here and here, that all three branches (and not just courts) should be concerned about the potential injustice to certain defendants who, sentenced in a manner now deemed unconstitutional, may be serving longer sentences than they legally should. I continue to think, as suggested long ago in this post, that justice would be served by developing some sort of administrative mechanism for sorting, and considering remedies for, constitutionally problematic sentences that are now final (and perhaps barring the habeas courthouse door to prisoners until they seek relief through such an administrative mechanism).March 6, 2005 at 06:44 PM

Sunday morning's must-read sectionThe Roper decision and Martha's release from prison have generated far more media buzz about sentencing issues than one human could possibly process (although Howard at How Appealing shows he is super-human by coming close). But today's New York Times

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Week in Review section is my suggested must-read for today. It includes this little article questioning whether the purposes of punishment were served or undermined by Martha's time in Alderson, and this fantastic graphic charting the history of capital punishment in the United States.But the most intriguing read is Chuck Colson's op-ed about prison life entitled "Martha Stewart Living Free." Here are a few choice excerpts:

I know firsthand why America's approach to criminal justice is such a flawed policy. The idea that prisons are "penitentiaries" (for penitence) or "reformatories" (to reform criminals) or "correctional institutions" (to correct bad behavior) is a myth. When pressed, most correction officials now acknowledge that prisons do not rehabilitate. Anybody who has spent time inside, whether Martha Stewart, Chuck Colson or a six-time drug offender, knows this - which is why I have become an advocate for alternatives.

As with Ms. Stewart, half of all inmates are in for nonviolent offenses. It would be just as much punishment to put them in work programs and make them pay back their victims or do community service. It would cost half as much, do some good, and pose no danger to society....

I was pleased to learn of one of Ms. Stewart's first statements upon her release from prison: "I will never forget the friends that I met here." This is the same promise I made 30 years ago. I hope that Ms. Stewart, who is a remarkable influence on women of all walks of life, uses her talents to reach out to the 100,000-plus women who are still behind bars. If Martha Stewart does this, I am certain she will find the same paradoxical happy ending to her prison journey that I have.

I have previously noted the work of Chuck Colson's organization, the Prison Fellowship, a few months ago in this post pondering whether we are starting to see a "new right" on criminal sentencing issues.March 6, 2005 at 01:00 PM

March 5, 2005

Latest compilation of post-Booker decisionsFrances H. Pratt, Research and Writing Attorney in the Office of the Federal Public Defender in Alexandria, Virginia, has updated her extended outline of post-Booker decisions all the way through this amazing sentencing week. The updated outline now runs 37 pages (having grown 5 pages just this week) and can be downloaded below. By early next week, this latest version (and thereafter any subsequent versions) of the outline should be accessible at this link.Download postbooker_decision_outline_030505.pdfMarch 5, 2005 at 10:08 PM

The costs of capital (punishment)A few months ago I noted here a new attentiveness to the extraordinary economic costs of administering a system of capital punishment. Thanks to How Appealing, I see that the Los Angeles Times, in this fascinating article in Sunday's paper, has calculated that

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the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life and not counting the millions more in court costs needed to prosecute capital cases and hold post-conviction hearings in state and federal courts.

The article then calculates that, with "11 executions spread over 27 years, on a per-execution basis, California and federal taxpayers have paid more than a quarter of a billion dollars for each life taken at state hands." The LA Times article includes a lot of other interesting California capital sentencing information, including the notable decline in the number of death sentences imposed: "In 1999, [California] juries imposed 42 death sentences. In 2004, the number dropped to nine." This datum provides yet more evidence, as detailed previously here and here and here, that the death penalty is in decline.March 5, 2005 at 09:58 PM

Weekend readingIf you have somehow caught up on all the sentencing reading recently provided for us by the courts (just some of which is linked here), there is no shortage of additional reading being provided by academics. Below I have listed and linked just a few of the articles I recently noticed on SSRN that are sentencing related:

The Untimely Death (and Rebirth?) of the Federal Sentencing Guidelines by Professor Roger Craig Green

Can 'Death Row Phenomenon' Be Confined to Death Row Inmates? by Professor Tung Yin A Map of Sentencing and A Compass for Judges: Sentencing Information Systems,

Transparency and the Next Generation of Reform by Professor Marc L. Miller Handcuffing Justice: The Shaky Empirical Foundations of the Feeney Amendment and also

Racial and Gender Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics both by Professor Max M. Schanzenbach

The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment can Teach the Sixth by Professor Paul F. Kirgis

Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum's Curtailment of the Prosecutor's Duty to 'Seek Justice' by Professor Amie N. Ely

Moral Accuracy and 'Wobble' in Capital Sentencing by Professor Scott E. SundbyMarch 5, 2005 at 05:11 PM

Roper's impact on the next chief?Commentary on the Roper decision continues to appear in the papers and the blogsphere, and SCOTUSblog here and How Appealing everywhere are the places to go for links to much of it. But this morning I was especially intrigued by this piece from Tony Mauro suggesting Justice Kennedy's work in Roper could hurt his chances to be the next Chief Justice. (Recall my long-ago speculations here than Booker might impact the Chief

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sweepstakes. That's pretty unlikely now that Justices Stevens and Breyer were the opinions' authors.)Even before Roper, I saw Justice Kennedy as fourth in line among current Justices for the top spot on the Court (behind Justices Scalia, Thomas and O'Connor). Moreover, because of the predicted battle royale over coming SCOTUS nominations, the White House may well opt to nominate an outsider directly to the position of Chief rather than have to battle twice over an internal elevation and an outside nomination.March 5, 2005 at 11:09 AM

March 4, 2005

What a sentencing week!I predicted March Madness in the world of sentencing, but this week alone has brought more sentencing news of note than I ever could imagine. In addition to all the news I've post here, How Appealing and the SCOTUSblog have had lots of Roper items of late, and this afternoon I see How Appealing also provides links here to an important Ninth Circuit three strikes decision and here to an important Eleventh Circuit prisoner rights decision. (Readers can guess the outcomes based on the circuits.)Simply in order to help me organize this amazing start to March, below I continue my tradition (as established here and here and here and here and here) of linking some recent posts. (I hope regular readers might report in the comments if you find this tradition more annoying than valuable).BOOKER CIRCUIT COURT DEVELOPMENTS

Intra-circuit split in the First Circuit The 5th Circuit is silent no more! More interesting Booker remands from the Sixth Circuit Contrasting circuit approaches to GVRs More rapid remands on Booker grounds

OTHER BOOKER DEVELOPMENTS AND COMMENTARYThe price of justice (aka the costs of Booker ) The fate and future of appeal waivers? Judge Gertner speaks on Booker ! Judge Adelman strikes again Martha reportedly says: "I just hate these sentencing guidelines." Judicial perspectives on Booker

STATE BLAKELY DEVELOPMENTS AND COMMENTARYAlaska's Blakely fix

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Tennessee's "official" Blakely fix Interesting NASC newsletter The state Blakely beat

ROPER DECISION AND COMMENTARYAdministering Roper More Roper thoughts and the development of state constitutional law Roper around the blogsphere

March 4, 2005 at 05:58 PM

Intra-circuit split in the First Circuit While the Fifth Circuit today in Mares (basics here) made deeper the three-way circuit split on how to handle Booker plain-error claims, two judges today in the First Circuit issued a lengthy concurrence in US v. Serrano-Beauvaix, No. 02-2286 (1st Cir. Mar. 4, 2005) (available here) to explain why they are unhappy with where the First Circuit is located in the plain-error universe.Judge Lynch writes for the court in Serrano-Beauvaix, and along the way she reiterates the circuit's position, established last week in Antonakopoulos (basics here), that "the defendant must persuade us that there is a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." The defendant in Serrano-Beauvaix did not meet this standard.But, to add to our Booker fun, Judge Lipez, joined by Judge Torruella, adds a 12-page concurrence in which he urges the circuit to follow the Sixth Circuit's plain error lead:

I agree with the result of the application of Antonakopoulos to this case. I write separately, however, to explain why, if I were free to do so, I would take a different approach to reviewing unpreserved claims of Booker error....I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred."

March 4, 2005 at 05:34 PM

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The price of justice (aka the costs of Booker)The ever speedy How Appealing (which looks extra pretty with its move to Movable Type) earlier today had posted here today's interesting news release from the Administrative Office of the U.S. Courts, which declares "Courts Gird for Likely Impact of Sentencing Appeals, Class Action Lawsuits" and details that President Bush has now forwarded to Congress the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year. As further detailed in this letter from Leonidas Ralph Mecham, director of the Administrative Office of the US Courts, to President Bush, the Judicial Conference asked for a total emergency supplemental appropriations of $101.8 million, with the additional $10.5 million sought to cover the impact of the recent federal class action legislation. Though the news release and letter are interesting, even more fascinating (and worthy of future posts this weekend) is this memo providing the Judicial Conference's detailed description of the cost impact of Booker. The memo allocates the $91.3 million in requested additional funding by earmarking $30 million for district and circuit courts, $60 million for defender services, and a (measly?) $1.4 million for the Federal Judicial Center and the US Sentencing Commission.Though the memo reviewing cost estimates is quite thoughtful and thorough, I think it may under-estimate the judiciary's post-Booker needs in various ways. Moreover, this request for funds does not address the added costs being borne by the Justice Department in the wake of Booker, nor the additional costs that would surely flow if (when?) Congress potentially muddies up the federal sentencing waters further through some form of Booker "fix."March 4, 2005 at 04:52 PM

The 5th Circuit is silent no more!Howard Bashman had the news (and my preferred title) first here at How Appealing: the Fifth Circuit has broken its surprisingly long Booker silence today (background here and here) with US v. Mares, No. 03-21035 (5th Cir. Mar. 4, 2005) (available here). Here are the summary highlights:

Mares raised this [Booker] issue for the first time in his brief filed with us on direct appeal. We agree with the Eleventh Circuit that our review is for plain error. United States v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.

UPDATE: Mares proves to be another case in which the court employed a quasi en banc process, as the court explains:

After circulating this opinion to all members of the court this panel has benefitted from and incorporated into the opinion many of their comments.

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In addition, the Court in Mares goes out of its way to speak broadly to a range of post-Booker sentencing issues, noting that "we think it appropriate for us to explain at the outset how we understand the Supreme Court expects sentencing will proceed under its decision in Booker/Fanfan." In Mares this means, inter alia, the most direct state by a Circuit court that post-Booker judicial fact-finding is to look just like pre-Booker judicial fact-finding:

The Guideline range should be determined in the same manner as before Booker/Fanfan. Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing. 125 S.Ct. at 750, 764. The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.

The Fifth Circuit in Mares also comes closest to suggesting that a sentence within the applicable guidelines will be per se reasonable:

If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines. Given the deference due the sentencing judge’s discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say such a sentence is "unreasonable."

March 4, 2005 at 02:12 PM

Alaska's Blakely fixYesterday I reported here on Tennesse's developing Blakely fix, which adopts an "advisory guideline" approach in the wake of Booker. Providing an interesting contrast, today I received news about Alaska's developing and distinct Blakely fix, which is now in the form of this bill that has already been passed by the Alaska legislature and is awaiting transmittal to Alaska's governor for signature. As detailed in the bill, the Alaska legislature is mostly opting to Blakely-ize its sentencing scheme. Here's how the bill was described in an e-mail to me:

The provisions in the bill that directly address Blakely are contained in sections 1 (legislative intent) and 21 of the bill, which sets forth how a defendant receives notice of proposed aggravating factors and requires that they be proved to a jury beyond a reasonable doubt. In addition, section 2 provides that aggravating factors need not be specificied in an indictment. The bill also changes from a system of specific presumptive terms to presumptive ranges.

A bit more background on this work by the Alaska legislature can be found in the middle of this this recent AP article. March 4, 2005 at 01:38 PM

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The fate and future of appeal waiversA remarkably important and remarkably under-examined feature of the pre-Blakely/Booker world of federal sentencing involved the widespread use of appeal waivers in plea agreements. As suggested here, we are already seeing some varied circuit approaches to addressing the fate of pre-Blakely/Booker appeal waivers, and of late I have been pondering the law, policy and practice of post-Booker appeal waivers. Appeal waivers — which can be very broad or quite narrow — have long been controversial in the federal system, and different US Attorney Offices and different district judges have had different policies and approaches to such waivers. See generally Windows into Sentencing Policy and Practice: the Crack/Cocaine Ratio and Appeal Waivers, 10 Fed. Sentencing Rep. 179 (1998). Every federal circuit has upheld the generally validity of such waivers of appeal, although a number of judges have expressed concern that such waivers are "inherently uninformed and unintelligent" and that broad appeal waivers frustrate Congress's policy decision in the Sentencing Reform Act to utilize appellate review to help eliminate unwarranted sentencing disparity. See id. at 181-82.As detailed in a Second Circuit brief available for download below, the government seems inclined to try to continue to enforce, though motions to dismiss a Booker appeals, ple-Blakely appeal waivers. But the "old" arguments against enforcing appeal waivers seem especially potent now: (1) from a defendant's perspective, appeal waivers entered pre-Blakely were obviously uniformed and unintelligent concerning the realities of a post-Booker world, and (2) from a system-wide perspective, Justice Breyer's remedial work in Booker asserts that Congress would strongly favor the "retention of sentencing appeals ... to iron out sentencing difference." Booker, slip op. at 21. For these reasons, I think a strong argument can be made that pre-Blakely appeal waivers should now be unenforceable or that circuit courts should now at least review all appealed sentences for reasonableness, as the Eighth Circuit did in Killgo (details here). And, again because of Justice Breyer's strong advocacy of Congressional interest in appellate review, perhaps district courts post-Booker ought to have renewed concerns about accepting pleas with appeal waivers.Download government_appeal_waiver_motion_to_dismiss.pdf March 4, 2005 at 12:05 PM

More interesting Booker remands from the Sixth CircuitThe Sixth Circuit continues to be the busiest court in the Booker business as today it has two more (unpublished) Booker opinions remanding cases to the district court. In addition, as detailed by Appellate Law & Practice here, the Sixth Circuit also seems to be almost automatically remanding cases that were GVRed back to the Circuit from the Supreme Court. (A previous discussion of circuit contrasts with the GVR cases is here, and Appellate Law & Practice here assails the Eleventh Circuit's approach to GVRs in Dockery.)The notable opinions on-line today (though dated yesterday) are US v. Williams, No. 03-6493 (6th Cir. Mar. 3, 2005) (available here) and US v. Tate, No. 02-4382 (6th Cir. Mar.

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3, 2005) (available here). The Tate case involved a preserved objection to drug quantity findings by the sentencing judge that enhanced the applicable guideline range, and the Sixth Circuit ordered a remand by simply stating: "Unless the Sixth Amendment error is shown to be harmless, reversal is appropriate. Because there has been no showing that the error was harmless, Tate is entitled to re-sentencing."The Williams case involved an unpreserved Booker claim (and also did not involve any judicial fact-finding). Drawing heavily from the Sixth Circuit's ruling in Barnett (discussed here), here's how the Williams Court explains its plain error approach:

This court in United States v. Barnett recently held, under circumstances materially indistinguishable from those here (including plain-error review), that a defendant meets the first, second, and fourth prongs of the plain-error test when sentenced under mandatory Guidelines. See United States v. Barnett, 2005 WL 357015, at *8, 12 (6th Cir. 2005). As regards the third prong, Barnett requires panels of this circuit to presume prejudice unless record evidence exists to rebut the presumption. Barnett, 2005 WL 357015, at *12.

A review of the sentencing-hearing transcript shows the district court here struggled with the decision to commit Williams to a prison setting instead of home confinement. The court called this a "fairly close case" and recognized that Williams suffers from "a very significant physical impairment." The court, however, concluded that the Guidelines contemplated "something more" for § 5H1.4 relief and thus denied the departure. The record lacks "clear and specific evidence" demonstrating that the district court would not have granted the departure under advisory Guidelines.

Williams's case meets the Barnett standard for exercising our discretion to notice the error. We vacate his sentence and remand to the district court for resentencing under the new rubric established by Booker.

March 4, 2005 at 10:22 AM

March 3, 2005

Judge Gertner speaks on Booker!This morning I noted here that there had been surprisingly few major district court Booker rulings of late. Thus, it is perhaps fitting that today, in addition to the potent work of Judge Adelman in Smith on on crack/powder issues (basics here), we now get Massachusetts US District Judge Nancy Gertner's insights on the post-Booker sentencing world. In US v. Jaber, No. 02-CR-10201-NG (D. Mass. Mar. 3, 2005), which can be downloaded below, Judge Gertner details at length — 39 pages, in fact — her view of "the applicable legal framework [for sentencing] in light of United States v. Booker."Based on a very quick overview, Jaber appears to be another tour-de-force from a judge who has already earned her place in my Hall of Fame. Here are a few introductory highlights from today's second must-read district court opinion:

[A]n "advisory" regime makes it all the more important that I adhere to my practice of writing opinions, outlining the reasons for the sentences I have imposed. As I describe in greater detail below, "advisory" does not mean a regime without rules, or a return to the standardless sentencing which preceded the SRA.

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Nor does it mean slavish application of the Guidelines under the guise of fair "consideration," an approach which is now unconstitutional. "Advisory" means something in-between.

Download gertner_jabarmomohsentenmemo.pdf March 3, 2005 at 05:57 PM

Contrasting circuit approaches to GVRsAs detailed here and here and here, there have been more than 500 Booker-inspired GVRs in which the Supreme Court sent sentencing appeals back to the circuit courts. Today, in brief decisions from the Sixth and Eleventh Circuits, we see another example of contrasting circuit justice in the handling of these GVRed cases. The Sixth Circuit in US v. Loverson, No. 03-6120 (6th Cir. Mar. 3, 2005) (available here), simply explains, "[u]pon reconsideration, we conclude that the district court's sentencing order must be vacated and the case remanded for re-sentencing." In contrast, in US v. Dockery, No. 03-1638 (11th Cir. Mar. 3, 2005) (available here), the Eleventh Circuit relies on post-Apprendi circuit precedent and the fact that, in his initial brief, "Appelllant asserted no such Apprendi (or its progeny) challenge to his sentence" in order to "reinstate our previous opinion in this case and affirm, once again, Appellant's sentence after our reconsideration in light of Booker, pursuant to the Supreme Court’s mandate."March 3, 2005 at 05:46 PM

Tennessee's "official" Blakely fixLast month I reported here and here on work being done by Tennessee's Blakely task force. Today, David Raybin, who has been integrally involved in the task force's work, sent me two documents reflecting the task force's official product. It is fascinating stuff and highlights one of the many ways that Booker has shifted debate in the states over Blakely.The first document, available for downloading below, is the task force's Final Report. This document explains that the Task Force considered but rejected a bifurcated jury approach, as well as a wide-open discretionary judge-sentencing system, and instead adopted an "advisory guideline" approach. The second document, also available for below, is the task force's proposed legislation itself. As David Rabyin explained in his e-mail:

Our proposal removes presumptive sentencing from Tennessee law so as to comply with the United States Supreme Court decisions. The former presumptive sentence provisions are replaced with a series of guidelines that include enhancement and mitigating factors and a statement of principles and sentencing considerations. The proposed Act requires the judge consider, but not be bound by, these advisory guidelines to arrive at an appropriate sentence which is subject to appellate review.

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David also explained in his e-mail that:There was significant debate over [our] proposal which seemingly violates Blakley. However, once we concluded that Booker trumps Blakely, we were satisfied that this was a sound alternative. The new law will be prospective given ex post facto considerations but a defendant may opt in by executing a waiver. There are a few new benefits under the law such as increased probation eligibility.

Download tennessee_task_force_report.pdf Download tennessee_blakely_legislative_proposal.pdf March 3, 2005 at 04:23 PM

Judge Adelman strikes againWisconsin US District Judge Lynn Adelman — who helped define the post-Booker debate with his Ranum opinion (basics here, commentary here and here), and added great insight with his subsequent Galvez-Barrios opinion (basics here, commentary here) — has added another impressive effort with US v. Smith, No. 02-CR-163 (E.D. Wisc. Mar. 3, 2005). Smith — which can be downloaded below and merits a close read for all its insights — deals with post-Booker judicial fact-finding, departures based on substantial assistance and other important issues. But the fireworks come in Smith's discussion the disparity between crack and powder cocaine. Here are just some of the some highlights:

As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine. In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine.... Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing....The Commission has studied the issue in depth and concluded that the assumptions underlying the disparity between crack and powder are unsupported by data.... [N]one of the previously offered reasons for the 100:1 ratio withstand scrutiny. Perhaps most troubling, however, is that the unjustifiably harsh crack penalties disproportionately impact on black defendants....Primarily as the result of the different penalties for crack and powder cocaine, and contrary to one of the Sentencing Reform Act's primary goals, the sentencing guidelines have led to increased disparity between the sentences of blacks and whites.... [T]he disparity in sentences involving crack and powder brings irrationality and possibly harmful mischief into the criminal justice system. To its great credit, the Commission has repeatedly sought to reduce the disparity.... Only Congress can correct the statutory problem, but after Booker district courts need no longer blindly adhere to the 100:1 guideline ratio. In the present case, I concluded that adherence to the guidelines would result in a sentence greater than necessary and would also create unwarranted disparity

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between defendants convicted of possessing powder cocaine and defendants convicted of possessing crack cocaine. The question then became what ratio to apply. Everyone seems to agree that 100:1 is too high.... The Commission has studied this issue and acquired expertise [and proposed a 20:1 ratio], [and thus] I gave its recent recommendation heavy weight.

Download adelman_smith_crack_opinion.rtfMarch 3, 2005 at 01:38 PM

Interesting NASC newsletterI noted here last night that the state Blakely story keeps humming along, and more proof today comes from this newsletter of the National Association of Sentencing Commissions. The NASC newsletter, which includes sentencing updates from more than a dozen states, shows not only how much state Blakely activity is on-going, but also how many other important sentencing issues are being worked through at the state level in a number of jurisdictions.March 3, 2005 at 11:21 AM

Interesting 6th Circuit Booker dictaThe Sixth Circuit, which now has issued 20 opinions addressing Booker, today has a Booker remand which includes some interesting dicta encouraging district courts to explain its post-Booker sentencing decisions. In US v. Jones, No. 03-6016 (6th Cir. Mar. 3, 2005) (available here), the court says:

The district court's sentence, and its exercise of discretion (if any), must be reviewed by an appellate court for "reasonableness." Accordingly, on remand, we encourage the sentencing judge to explicitly state his reasons for applying particular Guidelines, and sentencing within the recommended Guidelines range, or in the alternative, for choosing to sentence outside that range. Such a statement will facilitate appellate review as to whether the sentence was "reasonable." However, we take no position as to the content or extent of such a statement.

UPDATE: Appellate Law & Practice has more on Jones here.March 3, 2005 at 10:43 AM

Martha reportedly says: "I just hate these sentencing guidelines."Laurie Cohen has this front-page story (subscription required) on Martha Stewart's prison experiences. The long piece includes a lot of interesting sentencing items and some Booker discussion. Here are a few highlights:

On a recent morning in a dining room at the federal prison camp here, Martha Stewart listened, banana in hand, as two inmates told her of the assets they had to forfeit before serving lengthy sentences. A frustrated Ms. Stewart pounded her banana on the table, an inmate recalls. Susan C. Spry, serving a 12-year, seven-

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month sentence for possession of methamphetamine, says she blurted: "Martha, you're bruising your banana!" She says Ms. Stewart responded: "I just hate these sentencing guidelines." ...During her stay, Ms. Stewart, perhaps the nation's most famous federal convict, has become interested in prison and sentencing reform. After a landmark U.S. Supreme Court ruling in January that rendered mandatory sentencing guidelines unconstitutional, she wrote that she worried her fellow inmates would sink into a "severe depression" if courts fail to grant them shorter sentences.... In light of the Supreme Court's ruling, a number of Alderson inmates have filed petitions to get their cases reconsidered. "People were running up and down the hall cheering" on Jan. 12, the day the Supreme Court struck down the constitutionality of mandatory sentencing guidelines, says [a fellow inmate], whose own petition has been stayed. Ms. Stewart, she says, "has passed along whatever information she found out from her lawyers and has been galvanizing in terms of encouragement and exhortation to action."...But as Ms. Stewart predicted, many whose spirits were raised have become depressed again as they have learned that courts are unlikely to re-open plea bargains, in which defendants are required to waive appeals. "Most women are disappointed now," says [another inmate], who was also a lawyer, judge and prosecutor before being sent to prison. "And most are realistic."

March 3, 2005 at 02:50 AM

More Booker reports from the front linesThere have been surprisingly few major district court Booker rulings of late, but newspaper stories continue to provide a window on the post-Booker sentencing world. For example, this story from Detroit quotes from local judges and reports on a number of cases impacted by Booker; this story from Baltimore reports on fraud sentencing which apparently included a small departure though still resulted in a two-year prison term; this story from Peoria reports on a drug sentencing which apparently included a small variance though still resulted in an 11-year prison term. (These latter two stories reinforce a point I flagged here about the challenge of accurately reporting post-Booker sentences that are still "tough" even though they involve a downward departure or variance.)March 3, 2005 at 02:25 AM

The state Blakely beatThough the state Blakely story continues to be eclipsed by federal sentencing developments, there is still notable news from the states on a regular basis. Consider the following recent articles:

From Alabama, this article notes that the state's Chief Justice has called for a review of state sentencing laws in the wake of Blakely.

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From Arizona, this article discusses the impact of Blakely on the sentence in an assault case and also notes that the Arizona Supreme Court has taken up a new case with Blakely issues.

From Ohio, this article provides a broad overview of Blakely's possible impact in the state.

In addition, I am very pleased to see Michael Ausbrook from INCourts is finally back on the Blakely beat. He has a post criticizing Booker here, praising the Oregon Supreme Court's Blakely decision in Dilts here, and assailing the "Booker back-pedaling" he has noted in California and Indiana here and here and here.March 3, 2005 at 02:00 AM

More rapid remands on Booker groundsThis week has not (yet) brought any major circuit rulings on Booker. But we are continuing to see from many circuits what might be called rapid remands — remands on Booker grounds without any significant discussion of plain error or harmless error issues. I see on-line tonight such rapid remands on Booker grounds already this week from the Third, Fourth, Sixth, Eighth and Ninth Circuits. See US v. Marquez, 2005 WL 455858 (3d Cir. Feb. 28, 2005); US v. Newill, 2005 WL 468312 (4th Cir. Mar. 01, 2005); US v. Graham, No. 03-4346 (6th Cir. Mar. 1, 2005); US v. Sdoulam, 2005 WL 474337 (8th Cir. Mar. 02, 2005); US v. Morin, 2005 WL 450106 (8th Cir. Feb. 28, 2005); US v. Perez, 2005 WL 466053 (9th Cir. Mar. 01, 2005).In addition, on Tuesday the Fourth Circuit in US v. Collins, 03-4848 (4th Cir. Mar. 2, 2005) (available here) gave Booker issues a bit fuller airing, though ultimately ordered a remand based on the court's prior work in Hughes (basics here).The Third Circuit Blog has some interesting comments here about the remand practices of the Third Circuit, and Appellate Law & Practice here has some amusing comments about the Sixth Circuit's work in Graham.March 3, 2005 at 01:08 AM

March 2, 2005

Judicial perspectives on BookerDuring the run up to Booker, I pondered here whether federal judges would become actively involved in the post-Booker policy debate. Judges have, of course, weighed in through opinions in various ways, and at last month's US Sentencing Commission hearings, Judge Thomas Hogan reported in his testimony that the Judicial Conference will be consider a recommendation from its the Criminal Law Committee later this month.

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In the meantime, The Constitution Project and American Constitution Society are providing another means to hear a judicial persective on the post-Booker world. As detailed here, these groups are sponsoring next week a panel discussion on sentencing in the post-Booker world entitled "Booker: the Judges' Perspective." The panel is to be moderated by NPR's Nina Totenberg and will include Third Circuit Judge Samuel Alito, DC District Judge Paul Friedman, and Mass. District Judge Nancy Gertner.This terrific event is scheduled for Wednesday, March 9, 2005 in Washington, DC, and it merits a place in everyone's Booker Calender and becomes part of the on-going sentencing March Madness.March 2, 2005 at 06:03 PM

Using international law in a post-Booker worldThe discussion of foreign laws and practices in Roper (basics here) has already become a subject of much blog-dialogue as evidenced here and here and here. But today I received an interesting note from a self-described "retired Australian lawyer/law professor" who suggests that international law ought to be coming to bear in the post-Booker world. Here are some choice selections from his amusing and insightful missive:

Re: Booker, Fanfan et al, I have been fascinated by the legal sophistry which permeates the U.S. sentencing system. It is amazing that such a developed country could get itself into the mess that it has....One issue that I have found most puzzling is the ex post facto/due process problem and, in particular, whether one result of Booker is that, for offences committed prior to 12 January 2005, a person may possibly receive a sentence which is higher than that which he/she would have received under the mandatory sentencing range on facts found by the jury or admitted by the defendant (the system which operated before 12 January 2005). A question for you: Given that the US is a signatory to the Universal Declaration of Human Rights, why doesn't article 11(2) of the Declaration prohibit the imposition of a higher penalty? Why don't US trial lawyers/law professors not raise this issue as a starting point? The UN Declaration of Human Rights has been referred to in well over 100 cases in U.S. courts. I have copied and bolded the relevant paragraph....

Universal Declaration of Human RightsArticle 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

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Consider also that the American Convention on Human Rights, signed by the US on 1 June 1977, similarly provides in Article 9: "A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."I suspect that the US judicial response is that these two Declarations do not legally bind the United States Government in the sense of creating obligations enforceable in US courts, but they certainly do establish the relevant and applicable rule of international law which is part of US federal domestic law.

March 2, 2005 at 05:28 PM

Administering RoperWhen the Supreme Court declared in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court punted a number of tough administrative issues when it left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." As noted in this post about a recent California Supreme Court ruling, three years later the states are still sorting through post-Atkins administrative issues.Because chronological age is much easier to determine than mental retardation, the states should have a much easier time administering Roper. Nevertheless, there are still, I believe, some short-term administrative challenges for states that have been applying capital sentencing systems to juvenile offenders. For instance, I had no ready response when a colleague today asked: "Do the cases go back to the trial judge for re-sentencing or default to life?" This question also led me to ponder whether a juvenile offender sentenced to death at a time when a jurisdiction did not have the alternative of life without parole could now claim parole eligibility. (I assume some of these issues have been hashed out post-Atkins or earlier, though I doubt definitively.)[UPDATE: I see this newspaper article from Florida suggesting that two of the three offenders on Florida's death row for killings committed when they were juveniles may become eligible for parole because their crimes were committed before Florida had life without parole as a sentence option.]Moreover, I suspect there are more than a few on-going capital proceedings involving juvenile offenders that might need to be significantly adjusted. For example, as this article details, there is a high-profile murder trial involving a juvenile offender on-going in Philadelphia. Might the defendant in this case seek a mis-trial by claiming it is now inappropriate for a death-qualified jury to determine his guilt?March 2, 2005 at 03:49 PM

More Roper thoughts and the development of state constitutional lawNot surprisingly, the blogsphere continues to buzz about the Supreme Court's decision in Roper yesterday (early blog buzz is linked here, my early comments are linked here). Will Baude here at Crestcat Sententia shares some thoughts and also has links to the

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thoughts of many others. I was particularly intrigued by Orin Kerr's "evolving standards of decency" analysis here and Eugene Volokh's state constitutional law insights here and here over at The Volokh Conspiracy.I especially want to run with the state constitutional law idea because, in my view, it has been insufficiently discussed and litigated in the arena of criminal sentencing. Interestingly, in the search and seizure context, states have often interpreted state constitutional provisions to provide broader protection to individuals than the Fourth Amendment provides, see generally Marc Miller & Ronald Wright, Criminal Procedures (2d ed 2003), sometimes because the language of the comparable state constitutional provision is broader, see generally Hawaii Const. Art. I, sec. 7 (safeguarding the right to be secure against "invasions of privacy"). But I have not seen too many interpretations of state constitutional provisions which provides a broader reading of, say, Eighth Amendment-type provisions as possible limits on non-capital criminal sentences. Notably, more than a few states (including Texas) have a state constitution prohibition on "cruel OR unusual punishments" even though the federal constitution only bans "cruel AND unusual punishments." But, unfortunately, despite severely long sentences in many states, we have not often seen state courts willing to develop a robust jurisprudence concerning the plausibly distinct protections provided by distinct state constitution prohibitions.These issues seem especially ripe for development in the wake of Blakely and the mess the Supreme Court is making of the federal constitution's jury trial right. Notably, some state constitutions (including Ohio's) provide that the right to trial by jury "shall be inviolate;" it strikes me that exceptions to the federal jury trial right created by Harris (for mandatory minimum judicial fact-finding) and Almendarez-Torres (for prior conviction judicial fact-finding) might be subject to challenge under such state constitutional provisions. I have seen brief mention of state constitutional claims in only one or two post-Blakely decisions, and I wonder if lawyers are even thinking to raise such claims on a regular basis as the Blakely fall-out gets litigated in the states. Readers are highly encouraged to leave comments or send me e-mails with any notable past or present developments relating to sentencing and state constitutional law.UPDATE: Ken Lammers from CrimLaw discussed state constitutional law and litigation realities here, and Jeralyn Merritt from TalkLeft was kind enough to provide this link with all the state constitutions.March 2, 2005 at 01:35 PM

Notable 5th Circuit Booker dodge and criminal history decisionA few weeks ago I noted here the surprising Booker silence from the Fifth Circuit. Every other circuit with the exception of the DC Circuit has now addressed various Booker issues — many in grand ways; but now, a full seven weeks after Booker, we still have not gotten any Booker wisdom from a circuit that typically resolves nearly 70 sentencing appeals each month. I cannot help but speculate that significant internal debates within

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the Fifth Circuit is keeping it from addressing Booker issues in the many appeals that are now stacking up.Notably, the Fifth Circuit did resolve a sentencing appeal yesterday in US v. Montgomery, No. 03-11131 (5th Cir. Mar. 1, 2005)(available here), but did so in a way that allowed it to avoid addressing Booker issues. The defendant in Montgomery contested a sentencing enhancement based on being classified as an armed career criminal, which in turn was based on the district court's judgment that Montgomery had three prior "violent felonies." The Fifth Circuit remanded for resentencing by concluding that Montgomery's "prior conviction under a Texas retaliation statute does not qualify as a violent felony." And, explained the Fifth Circuit, "[i]n light of this conclusion, we need not address the impact of the Supreme Court's recent Booker decision on Appellant's alternative argument that the sentence enhancement violated his Sixth Amendment rights."Among the interesting aspects of this Montgomery disposition is that the Supreme Court is likely soon to decide the Shepard case, which will address in another context how to interpret and apply Armed Career Criminal Act's sentencing enhancements. Thus, delaying a decision in Montgomery might have been justified (though not essential) in light of an expected Supreme Court decision. The same cannot be said for delaying a decision on Booker issues.March 2, 2005 at 11:30 AM

Suspect Seventh Circuit standards?Bill Theis has this extended post at the Seventh Circuit Blog raising a series of thoughtful questions and concerns about the recent plain error work of the Seventh Circuit it Paladino and Lee (discussed here and here). In addition, a few readers and the comments here have suggested that Judge Posner's statement in Paladino that a trial judge "must justify departing from the guidelines, and the justification has to be reasonable" indicates that the Circuit ascribes to Judge Cassell's view of the guidelines still having heavy weight post-Booker.March 2, 2005 at 08:41 AM

Roper around the blogsphereI am back home in chilly Ohio, but keeping me warm is the heated discussion of Roper all through the blogsphere. Here a quick run-down with some links:

TalkLeft Orin Kerr at The Volokh Conspiracy Waddling Thunder at Crestcat Sententia Dylan at Slithery D David at the Blue Mass. Group

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In addition, a number of other blogs have collected links to some of the early media coverage, including SCOTUS Blog here, Law Dork here, and How Appealing seemingly everywhere.March 2, 2005 at 12:07 AM

March 1, 2005

Off line while Ohio boundI am heading to the airport for my flight back to Ohio from LA, and thus I will be off-line for a while (though I hope to catch up on all the post-game analysis of Roper late tonight). As I did previously here and here and here and here, below I have thematically organized and linked some recent posts:ROPER DECISION AND COMMENTARY

SCOTUS declares unconstitutional juvenile death penalty in Roper Talk of foreign practices in Roper Using Roper 's focus on age in post- Booker sentencings More evidence of the death of death?

BOOKER CIRCUIT COURT DEVELOPMENTSThe plain error patterns continue Can the plain error mess be cleaned up? 11th Circuit does a Booker remand 7th Circuit speaks on plain error (and follows Crosby ) Sixth Circuit addresses retroactivity

OTHER BOOKER DEVELOPMENTS AND COMMENTARYIntriguing Booker -free Gonzales comments and other DOJ news PAG follow-up on recent USSC hearings Still more Booker GVRs from SCOTUS How should variances that still result in prison terms be coded and considered? Gearing up for March Madness

March 1, 2005 at 01:21 PM

More evidence of the death of death?The Supreme Court's ruling in Roper only has a direct impact on a very small number of cases, since very few juveniles are sentenced to death even in those states which had permitted the practice. But the ruling is of grand symbolic importance, and may provide

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additional evidence to support my prior speculation here that the punishment of death may itself be dying a slow death. (Consider also that, with only five executions in the first two months of 2005, this year is on pace for the fewest executions in the United States in over a decade.) Though I do not expect complete abolition any time soon, opponents of the death penalty are surely to be encouraged by the direction of recent capital sentencing developments.March 1, 2005 at 12:32 PM

Using Roper's focus on age in post-Booker sentencingsThe Supreme Court's ruling in Roper (basics here and here) includes much interesting discussion of the "diminished culpability of juveniles" and the "mitigating force of youth," due in part to the "immaturity" and "vulnerability" of juveniles. Though much is said in all the Roper opinions about what this should mean for purposes of the death penalty, my Booker-oriented mind has me thinking about what this should mean for non-capital sentencing.Of course, "death is different" and rarely does capital sentencing jurisprudence impact non-capital sentencing decision-making (even though I think it should). Nevertheless, if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases? The US Sentencing Guidelines have long declared age a "discouraged" sentencing factor, though post-Booker we have seen a few judges question whether that determination jibes with the commands of 3553(a). In my view, Roper adds significant force to an argument that age must (or at least should) be a significant consideration in some non-capital sentencing decisions.March 1, 2005 at 12:00 PM

Talk of foreign practices in RoperThe Roper case was being closely watched as a litmus test for the Supreme Court's concern with foreign laws and practices, because most of the world's nations do not permit the execution of juvenile offenders. The final section of Justice Kennedy's opinion for the Roper Court includes an interesting discussion of these matters. Here are a few excerpts:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court.s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."

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The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.... It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices:

The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

March 1, 2005 at 11:26 AM

SCOTUS declares unconstitutional juvenile death penalty in RoperIn a 5-4 decision authored by Justice Anthony Kennedy, the Supreme Court has held in Roper v. Simmons that the death penalty "is a disproportionate punishment for juveniles," and thus the Eighth Amendment prohibits the execution of a murderer who committed his crime before age 18. Justice Kennedy's opinion for the Court is here, Justice Stevens' concurrence is here, Justice Scalia's dissent is here, and Justice O'Connor's dissent is here. Another 80+ pages of SCOTUS wisdom for our reading pleasure. SCOTUS Blog already has a brief report on the case here, and I hope to provide some additional commentary on this notable ruling soon.UPDATE: The first part of Justice Kennedy's opinion for the Court closely tracks the Court's 2002 decision in Atkins prohibiting the execution of persons with mental retardation:

As in Atkins, the objective indicia of consensus in this case — the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U. S., at 316.

And Justice Kennedy's discussion of "theory" considerations also track Atkins and concludes with this interesting explanation of the Court's reversal of Stanford and its 1989 approval (per Justice Scalia) of the juvenile death penalty:

To the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, it suffices to note that those indicia have changed. It should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty; a State’s decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is

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inappropriate for all offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions. It is also inconsistent with the premises of our recent decision in Atkins.

March 1, 2005 at 10:27 AM

Intriguing Booker-free Gonzales comments and other DOJ newsAs detailed in this New York Times story and this Washington Times story , Attorney General Alberto Gonzales delivered his first major policy speech on Monday at the Hoover Institution. The full text of the speech can be found here, and I was intrigued to discover that the speech did not mention Booker or the federal sentencing guidelines either directly or indirectly. (Recall that, as detailed here, a month ago out-going AG John Ashcroft gave a speech at the Heritage Foundation in which he criticized the Booker ruling and said Congress, in response to Booker, "should reinstitute tough sentences and certain justice for criminals.")Meanwhile, in other notable DOJ news spotlighted by this official press release, Assistant Attorney General Christopher Wray of the Criminal Division officially tendered his resignation on Monday. As head of the Criminal Division, Wray was a key player in the Blakely/Booker saga, and it is hard not to speculate about the possible impact this transition could have as DOJ formulates its post-Booker plans.It has been a poorly-kept secret that there is an internal debate within DOJ about how to respond to Booker, though the buzz of late seemed to be that we could expect something official and consequential from DOJ within a matter of weeks. I encourage readers to use the comments to suggest whether we should now read the DOJ tea leaves differently in light of Gonzales' Booker silence and Wray's departure.March 1, 2005 at 03:23 AM

PAG follow-up on recent USSC hearingsI have received a copy of a letter that the Practitioners' Advisory Group sent Monday to the US Sentencing Commission, which follows up on a number of topics covered during the USSC's Booker hearings in mid February (hearing highlights and commentary are linked here). The letter, which can be downloaded below, is captioned "Supplemental Comments About Sentencing and Reporting Procedures, Victim Participation, and Procedural Reform." Perhaps the letter's most noteworthy feature is its extended engagement with issues relating to victim participation in sentencing matters, an issue spotlighted by Judge Paul Cassell in his USSC testimony and in recent posts here and here. Also interesting is the PAG letter's discussion of a post-Booker sentencing checklist distributed by Judge Weinstein to the federal defenders, judges and magistrates in the Eastern District of New York. I also provide that checklist for downloading below.

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Download pag_supp_letter_to_ussg_2.28.05.final.docDownload weinstein_checklist_for_sentencing.pdf March 1, 2005 at 02:41 AM

Still more Booker GVRs from SCOTUSI was very well treated by the kind folks at Loyola Law School during my Monday faculty workshop, and election law uber-blogger Rick Hasen noted that today's SCOTUS work included more Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker). Indeed, as detailed in this list of orders, today there were more than 50 Booker-inspired GVRs (to go along with the more than 30 GVRs from last week noted here).March 1, 2005 at 02:10 AM

The plain error patterns continueThe Booker story in the circuits is now perhaps getting a bit boring, as circuits continue on their distinctive plain error paths. For example, the Eleventh Circuit today continued its tough plain error approach by reissuing here its opinion in US v. Curtis denying a Blakely/Booker claim. Meanwhile, late last week, the Second and Third and Ninth Circuits remanded cases on Booker grounds in their own distinctive ways. See US v. Daidone, 2005 WL 435409 (2d Cir. Feb. 25, 2005); US v. Moore, 2005 WL 428785 (2d Cir. Feb. 24, 2005); US v. Able, 2005 WL 428758 (3d Cir. Feb. 24, 2005); US v. Sumner, 2005 WL 428832 (9th Cir. Feb. 24, 2005).The most interesting of the recent Booker decisions comes from the Seventh Circuit per Judge Easterbrook. Though US v. Lee, No. 03-4239 (7th Cir. Feb. 25, 2005) (available here), essentially reiterates the court's major plain error holding in Paladino (basics here), the tone of the opinion is essential Easterbrook as the Lee court details all the settings in which Booker remand might not be necessary.March 1, 2005 at 01:21 AM

February 28, 2005

A final LA Booker dayWhile everyone back east struggles with a winter storm, I have the good fortune of one last day in sunny LA thanks to a kind invitation to do a faculty workshop from the kind folks at Loyola Law School. I will likely be off-line the rest of the day while I talk about sentencing procedures in a post-Booker world, though I hope to be able to catch up on any Monday developments late tonight.February 28, 2005 at 01:17 PM

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More insightful Booker metaphorsIn this post I spotlighted some of the Booker song references I have seen, and this comment has added a Booker version of Bob Dylan's "Times They Are a-Changing." But at the AFDA seminar I attended last week, there seemed to be a pop culture reference shift to movies and books, with The Wizard of Oz, The Perfect Storm and Alice in Wonderland all getting a Booker spin. Professor Margareth Etienne (along with Atlanta Federal Defender, Natasha Perdew Silas) gets credit for turning the Supreme Court's sentencing jurisprudence into a trip to Oz. And today Margareth sent me a draft of a forthcoming Booker commentary which shows she has no shortage of useful Booker metaphors. In the piece that can be downloaded below — which is titled "Into the Briar Patch?: Power Shifts Between prosecution and Defense after United States v. Booker" and is forthcoming in the Spring 2005 issue of the Valparaiso Law Review — Margareth explains how the "Tar Baby story is instructive in understanding the latest developments in the regulation of federal sentencing." Download etienne_re_booker.doc February 28, 2005 at 11:49 AM

East coast sentencing updatesHere is some news in the Monday morning papers on sentencing developments in New York and New Jersey:

The New York Times has this article focusing on the new doubts of Helene Weinstein, speaker of the NY Assembly, about the death penalty as NY contemplates revising its capital punishment statute which was declared unconstitutional by New York's highest court last summer in LaValle (basics here).

The New Jersey Star Ledger has this story concerning arguments being heard tomorrow by the Supreme Court of New Jersey in two cases that address the impact of Blakely on New Jersey's statutory sentencing scheme. This argument can be followed via live webcast at this link, and background and some of the brief in the case are available here.

February 28, 2005 at 09:42 AM

Gearing up for March MadnessMarch is, of course, one of the most exciting sports months as we fill out our NCAA brackets and our fantasy baseball rosters. But, with the busy Booker calender humming along and with other big events on the near horizon, March is also shaping up to be an exciting sentencing month. Consider:March 1: Arguments in the New Jersey Supreme Court in major Blakely cases, which can be followed via live webcast at 10am at this link. UPDATE: Due to the severe weather, these arguments have been postponed until March 14.

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March 1 and 2: The next decision days for the Supreme Court, allowing for more watching for decisions in Roper v. Simmons, the juvenile death penalty case, and Shepard v. US, the criminal history case.March 7: En banc arguments in the Tenth Circuit on Booker issues (basics here).March 9: En banc arguments in the Eighth Circuit on Booker plain error (basics here).March 10-11: As detailed here, Ohio State's Justice for Children Project, in conjunction with the Ohio State Journal of Criminal Law and the OSU Center for Law, Policy, and Social Science, will sponsor a conference entitled "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law." The event's full brochure is linked here.March 21, 28, 30: Supreme Court arguments in major corrections (Cutter v. Wilkinson and Wilkinson v. Austin) and death penalty (Medellin v. Dretke) cases.March 25: As detailed here, the William and Mary School of Law presents a symposium entitled "In Prison for 30 Years for Fraud: Sentencing and the Constitution After Sarbanes-Oxley." In addition, I anticipate that before the end of March we may see a proposal from the Justice Department for some sort of "Booker fix" and/or Senate hearings examining the Booker fallout. In addition, as explained here, I am very hopeful that we will get updated post-Booker sentencing data from the US Sentencing Commission in March.February 28, 2005 at 02:15 AM

Can the plain error mess be cleaned up?This week the Booker plain error mess got even messier. The Seventh Circuit in Paladino joined the Second Circuit adopting something of a plain error middle-ground (and the Second Circuit reiterated its Crosby approach in Williams), while the First Circuit in Antonakopoulos joined the Eleventh Circuit in taking a tough line on plain error (and the Eleventh Circuit reiterated its Rodriguez approach in Duncan). Meanwhile, in an effort to undue the most generous plain error standard, the government has sought en banc review of Hughes in the Fourth Circuit and Ameline in the Ninth Circuit (the Ameline briefs are collected here).In the midst of these developments, I asked here whether the Supreme Court might try to clean up the plain error mess. The problem is that, even if SCOTUS were to grant cert. on this issue, it might still be a year or more before we would get a definitive decision. These realities have me pondering whether Congress or the US Sentencing Commission could, on a quicker timeline and in service to the goal of sentencing uniformity, do something now to harmonize plain error decision-making. Though I doubt either Congress or the USSC will act in this arena, it is fascinating (and quite challenging) to think through whether and how Congress or the USSC could even try to clean up the plain error mess.February 28, 2005 at 01:37 AM

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Booker items in the Third BranchThe Third Branch, the official newsletter of the federal courts, has a troika of Booker items in its February 2005 issue: this Booker -focused interview with Judge Sim Lake, chair of the Judicial Conference Committee on Criminal Law, this account of varied official reactions to Booker, and this review of the memo from Judge Lake and USSC Chair Hinojosa to courts stressing the importance of continuing to submit sentencing documents to the US Sentencing Commission.February 28, 2005 at 12:44 AM

February 27, 2005

Sentencing around the blogsphereJust a few moments on-line this morning has allowed me to see more than a few recent sentencing items on other blogs. TalkLeft has two interesting posts on death penalty issues with this post on a Nevada bill to eliminate the death penalty for juveniles, and this post about an effort to raise the burden of proof in Illinois death penalty cases. And Howard Bashman is back at How Appealing (huzzah!), and he has linked here a lot of the coverage of the Supreme Court's criminal justice decisions last week. On the Booker front, I see here that the PRACDL is seeking to collect information from lawyers about each sentencing hearing they attend "so as to give us all a better idea of how Judges are sentencing post-Booker." And the Second Circuit Blog here has coverage of the Second Circuit's recent Williams decision (basics here).February 27, 2005 at 10:13 AM

February 26, 2005

Weekend plansQ: "Your head is still spinning from all the circuit plain error craziness, and you just attended the AFDA's full day Booker seminar in LA , what are you going to do next?"A: "I'm going to Disneyland!"February 26, 2005 at 10:53 AM

Booker developments in the morning papersThis Newsday article provides an interesting report on the Third Circuit's approach to Booker pipeline cases:

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Without much public debate, the 3rd U.S. Circuit Court of Appeals has quietly begun tossing out the sentences of certain felons whose punishments were calculated under mandatory federal sentencing guidelines that had been in place nearly two decades before being declared unconstitutional in January.... The court ... has been sending letters to each criminal defendant with a case currently on the 3rd Circuit docket. The letters ask defendants to write brief letters explaining whether they plan to challenge their sentences, too. "That's highly unusual," Assistant U.S. Attorney Linda Hoffa said. "But how often do you have landmark cases like this?"

As detailed here, there is a rumor going around that the Third Circuit adopted its unique approach to Booker after the Circuit judges polled the district judges on what to do.Meanwhile, at the district court level, the papers have anecdotal report on more tough post-Booker sentences. This article from Maryland reports on 22-year (with-the-guidelines) sentence in a cocaine case. And this article from North Dakota reports on 22-year sentence in a meth case, though the report suggests this sentence may have been a "variance." The case appears to be another example, previously discussed here, of a judge granting a variance but still imposing a significant prison term.February 26, 2005 at 10:19 AM

February 25, 2005

11th Circuit does a Booker remandThough not quite as big as the news from the Seventh Circuit on plain error (basics here), I see from Appellate Law and Practice here that the Eleventh Circuit today did remand a case on Booker grounds. Interestingly, in US v. Shelton, No. 04-12602 (11th Cir. Feb. 25, 2005) (available here), there was not Sixth Amendment violation, but the Eleventh Circuit remands because it still finds "Shelton has established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime."February 25, 2005 at 09:38 PM

7th Circuit speaks on plain error (and follows Crosby)I just returned from the terrific AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (at which I learned a lot and from which hope to share some new insights over the weekend). And I returned to find that the Seventh Circuit, per Judge Posner, has weighed in on plain error and has, with a slight tweak, followed the lead of the Second Circuit in Crosby. The opinion in US v. Paladino, No. 03-2296 (7th Cir. Feb. 25, 2005) (available here), is a wonderful and remarkable effort, and it includes two dissents from the denial of rehearing en banc. As Judge Posner explains in the last paragraph, the Paladino opinion "was

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circulated to the entire court before issuance [and all] but two members of the court in regular active service voted not to hear the case en banc."There are many amazing passages in Judge Posner's opinion and in the en banc dissents of Judges Ripple and Kanne. I hope to comment on Paladino and on the deepening plain error three-way split in the circuits this weekend, but for now every Booker watcher can do their own read (and add comments below) of this latest Posner contribution to our new sentencing world.February 25, 2005 at 09:25 PM

Keeping Booker busyI am likely to be off-line for the rest of the day as I participate in the AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (details here). Fortunately, for Booker addicts, the federal circuits have already provided plenty of reading. Also, I see that a webcast of the Washington Legal Foundation's Panel Discussion entitled "The Future of Federal Sentencing: 'Reasonable' Judicial Discretion or Congressional Intervention?," which took place yesterday, can now be accessed here.February 25, 2005 at 10:40 AM

Sixth Circuit addresses retroactivityContinuing to provide a daily supply of Booker rulings, the Sixth Circuit today in Humphress v. US, No. 03-5951 (6th Cir. Feb 25, 2005) (available here), issued its first opinion on retroactivity. The Sixth Circuit in Humphress holds that Booker "does not apply retroactively to cases already final on direct review." As has been common in many such rulings, the Sixth Circuit relies heavily on the death penalty case Schriro, which concluded Ring was not retroactive. "Schriro's reasoning applies with equal force to Booker," says the Sixth Circuit (although the court does not directly confront the fact that Schriro did not deal with the burden of proof issues, as detailed here).The Sixth Circuit also had another (unpublished) plain error ruling today with US v. Cook, No. 02-1405 (6th Cir. Feb. 25, 2005) (available here). As is the Sixth Circuit's recent pattern, in Cook the court finds plain error and orders a remand for resentencing based on Booker.February 25, 2005 at 09:59 AM

How should variances that still result in prison terms be coded and considered?I have recently highlighted here and here challenges for the US Sentencing Commission in trackng and coding variances and departures effectively. In addition, as discussed here, not all variances are the same of should be coded and considered equally since large variances pose a much greater risk of disparity than small ones. Indeed, in reading newspaper accounts of some federal sentencings, I detect a pattern in which judges may

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be granting variances but still imposing significant prison terms on first time offenders. This story of the sentencing of a Hawaiian state representative and this story of the sentencing of two Los Alamos lab workers seems to fit this mold. It will be interesting to see whether and how the USSC will be able to capture in its variance data that significant prison terms were still imposed in a number of variance cases.February 25, 2005 at 09:50 AM

Intriguing safety value Booker issue from the Sixth CircuitBlogger Sixth Circuit at Appellate Law & Practice notes here an intriguing unpublished opinion from the Sixth Circuit, US v. Ross, No. 02-6435 (6th Cir. Feb. 24, 2005) (available here), in which the government agreed to a Booker remand after the defendant contested a judge's fact-finding which made the defendant ineligible for a safety-valve reduction. Blogger Sixth Circuit wonders why the government would make this concession, speculating "that the Government would have a strong argument for no Sixth Amendment violation under Harris and McMillan."I think the government's concession is curious, but not for the reason spotlighted by Appellate Law & Practice. The facts which supported Ross' 10-year mandatory minimum on a crack offense were admitted by Ross, so this case is not about fact-finding for a mandatory minimum. Rather, the case turned on whether the judge could find that violence or a firearm was associated with that crack offense so as to make Ross ineligible for a safety-valve reduction. But this fact-finding would seem technically to be about potential mitigating facts (the absence of violence or a firearm), not aggravating facts, so it would seem to be Blakely/Booker permissible. In the end, then, the case actually spotlights some of the sophistry that may surround distinguishing judicial fact-finding of aggravating facts and mitigating facts.February 25, 2005 at 03:05 AM

The 11th Circuit sticks with its plain error approachA safe trip to LA and a hotel net connection allowed me to find out that the Eleventh Circuit today in US v. Duncan, No. 03-15315 (11th Cir. Feb. 24, 2005) (available here), reiterated its hard-line plain error approach to Booker claims. The bulk of the Duncan opinion just replays the court's plain error analysis in Rodriguez (basics here, commentary here), but the kicker in Duncan is that the district court's pre-Booker sentence incorporated so-called "acquitted conduct." The Eleventh Circuit says this does not change the analysis:

Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict. Thus, nothing in Booker erodes our binding precedent. Booker suggests that sentencing judges can continue to consider relevant acquitted conduct when applying the Guidelines in an advisory manner, "[f]or when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the

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facts that the judge deems relevant." Booker, 125 S. Ct. at 750. Here, applying Justice Breyer's opinion retroactively, we conclude that the jury verdict authorized life imprisonment. Therefore, we conclude that it was not error for the sentencing judge to find a fact that had been acquitted by the jury when determining Duncan's sentence.

The Duncan court also goes on to explan why it thinks the Eleventh Circuit has plain error right while the Fourth, Sixth, and Ninth Circuits have it wrong. The Duncan court also rejects the defendant's intriguing ex post/due process fair warning claims: "We readily conclude that Duncan had sufficient warning to satisfy the due process concerns articulated in Rogers v. Tennessee."February 25, 2005 at 12:47 AM

February 24, 2005

Off to the CoastJust in time for the Oscars, I am off to LA to participate tomorrow in the AFDAs full-day seminar on "Federal Sentencing In A New Era After Booker/Fanfan" (details here). Though blogging may be a bit lighter the next few days, there is no shortage of reading to catch up on. As I did previously here and here and here, below I have thematically organized and linked recent posts:BOOKER CIRCUIT COURT DEVELOPMENTSMore Booker wisdom from the 2d Circuit The Third Circuit speaks more fully on Booker (and Almendarez-Torres ) Booker remands in the 8th and the 10th Lots more on Booker from the Sixth Circuit Two for Tuesday from the First Circuit Plain error Booker circuit review OTHER BOOKER DEVELOPMENTS AND COMMENTARY

A simple solution to the pipeline problem? Eager for more post- Booker data Important Booker rulings from district courts A fascinating 3d Circuit rumor The Blakely beat goes on in the states

SCOTUS DEVELOPMENTS AND COMMENTARYWill SCOTUS care to clean up the plain error mess? Criminal justice, constitutional law, federalism and hot button issues More thoughts on recent SCOTUS work

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SCOTUS speaks on racial segregation in prison More SCOTUS Booker GVRs

February 24, 2005 at 12:30 PM

A simple solution to the pipeline problem?The Second Circuit's powerful decision late yesterday in Williams explaining its Crosby approach to plain error (discussed here, now available on-line here), as well as the cert. petition in the Eleventh Circuit's Rodriguez decision (discussed here), spotlight dramatically the disparate circuit approaches to some of the pipeline cases. And considering that plain error is only one of the challenging pipeline issues facing the circuit courts, I have lately been thinking about whether there is some easier way to deal with all the pipeline cases.Here is my latest thought. How about this blanket rule to be applied to all non-final cases at any stage of appellate review: if the original sentence was at the guidelines minimum, a strong (but rebuttable) presumption that resentencing is appropriate; if the original sentence was above the guidelines minimum, a solid (but rebuttable) presumption that resentencing is not needed?In other words, forget about plain error, harmless error, Rule 28(j) letters, etc; let's just have, in the name of greater uniformity, one blanket rule for all non-final cases still in the system. If this is a good idea, could Congress or the USSC make it happen?February 24, 2005 at 12:14 PM

Eager for more post-Booker dataAs highlighted in recent posts here and here and here (and as I stressed in my USSC testimony), the role and importance of the US Sentencing Commission in collecting and disseminating post-Booker data cannot be overstated. The data reported in USSC Chair Judge Hinojosa's testimony to the House Subcomittee was potent (and received notable media attention), but it is now already three weeks old. Though Judge Hinojosa updated the data at last week's USSC hearings, I am wondering when we will get another official and public report on post-Bookers20 sentencing developments from the Commission.I see from this USSC webpage that the Commission has a public hearing scheduled for April 12, which is (coincidentally?) the exact three-month anniversary of Booker. I hope we won't all have to wait until then for some more official data. I have heard rumors about the possibility of a "Booker fix" proposal coming from the Justice Department soon and also about possible Senate hearings. Both the executive and legislative branches would profit enormously from more updated post-Booker data ASAP from the USSC.For more evidence on the power and importance of sentencing data, I am pleased to be able to provide for downloading below Professor Marc Miller's latest article promoting "sentencing information systems" to be published in the Columbia Law Review entitled "A Map of Sentencing and a Compass for Judges: Sentencing Information Systems, Transparency and the next Generation of Reform." As Marc explains in his article,

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"sentencing reform everywhere can be improved" if actors and institutions "make sentencing information and sentencing data publicly available and easily accessible."Download miller_data_article_105clr_ssrnfeb1405.pdfFebruary 24, 2005 at 11:41 AM

More thoughts on recent SCOTUS workThe blogsphere has some interesting commentary on the criminal justice decisions of the Supreme Court this week. The double jeopardy case of Smith v. Massachusetts elicited this post from CrimLaw, and Eugene Volokh also discusses, as I mentioned here, the unusual (Booker-like) line-up of Justices in Smith in this post. And the prison racial segregation case Johnson v. California (basics here, commentary here) has caught Jack Balkin's attention as detailed in this posts20 because of the Justices' varied approach to racial distinctions.February 24, 2005 at 11:05 AM

Important Booker rulings from district courtsWith all the non-stop Booker action in the circuits , it is easy to overlook the important Booker work still being done by the federal district courts. I've not been able to track of dozens of district court habeas rulings, but I can quickly report on a few notable recent district court rulings on other issues (and previous coverage is here).For example, Judge Cassell has covered more important post-Booker ground by thoughtfully explaining in US v. Duran, 2005 WL 395439 (D. Utah Feb. 17, 2005), why the guidelines must still be considered advisory in cases involving application of the "safety valve." Also quite thougthful is the work done by Judge Ellis in US v. Biheiri, 2005 WL 350585 (E.D. Va. Feb. 09, 2005), which has notable dicta on a range of post-Booker issues.But the most notable and potentially consequential district court decision of late would seem to be US v. Greer, 2005 WL 396368 (M.D. Ga. Feb. 17, 2005), which speaks to the scope of the Almedarez-Torres prior conviction exception (here is a lot more background on this issue). In Greer, the court holds in a 924 case that a prior violent felony was not proved to a jury and could not be used to enhance a sentence. The Greer court reaches this conclusion because "[d]etermining the factual nature of a prior conviction is materially different from simply finding the existence of a prior conviction for recidivism purposes [and the] Court finds that the Sixth Amendment to the Constitution, as interpreted in Booker and Blakely, reserves this type of factfinding for jury determination."February 24, 2005 at 09:46 AM

Booker remands in the 8th and the 10thThough not quite as thrilling as the Booker work yesterday of the Second Circuit in Williams (discussed here), the Third Circuit in Ordaz (discussed here), and the Sixth

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Circuit in a bunch of cases (discussed here), the Eighth and the Tenth Circuits have also been Booker active lately.Given the Eighth Circuit's recent pattern of suspect Booker affirmances (discussed here), the court's remand on Booker grounds in US v. Selwyn, No. 04-2164 (8th Cir. Feb. 23, 2005) (available here), is quite noteworthy. It is unclear whether the defendant in Selwyn raised a precise Sixth Amendment claim at sentencing, but he did object to the PSR's calculation of drug quantities. In addressing Booker claims on appeal, the Eighth Circuit says "Selwyn objected to drug quantity findings, preserving this issue for appeal.... We therefore remand to the district court for resentencing [and] do not address Selwyn's additional claims beyond noting that they may be considered at the new sentencing proceeding."The Tenth Circuit's unpublished rulings in US v. Arroyo-Berzoza, 2005 WL 408062 (10th Cir. Feb 22, 2005), is dated Tuesday but just came on-line. It serves as a confirmation of the circuit's important conclusion in Labastida-Segura (discussed here) that, even when there is no Sixth Amendment violation below (here because all relevant sentencing facts were admitted by Arroyo-Berzoza), the harmless error analysis suggested by Booker means a remand is still necessary when the district judge sentenced at the bottom of the applicable guideline range so that the district court can decide now in the first instance what to do now that the guidelines are advisory.February 24, 2005 at 08:39 AM

A fascinating 3d Circuit rumorAs detailed in posts here and here and here and here, the Third Circuit has apparently decided to handle Booker pipeline cases simply through remands for resentencing that explain that the Court believes Booker issues are "best determined by the District Court in the first instance." I have now heard a rumor that the Third Circuit's general practice of remanding all sentences after Booker was developed after the Circuit judges polled the district judges on what to do, and the district judges virtually unanimously requested that they get all of their pipeline sentences back for redetermination. If this rumor is true, it provides a fascinating example of what might be called inter-court comity, as well as another instance of how the Blakely/Booker fall-out has produced some unusual circuit court decision-making procedures (the Second Circuit's quasi en banc work in Crosby, as noted here, provides another such example).February 24, 2005 at 07:59 AM

The Blakely beat goes on in the statesDespite my own desire to keep up with the state Blakely story (see here and here), the Booker story lines have consumed this blog. Nevertheless, the state Blakely story keep chugging along. For example, in Minnesota there were recently two Blakely remands, see State v. Crow, 2005 WL 406201 (Minn. App. Feb. 22, 2005); State v. Smith, 2005 WL 406313 (Minn. App. Feb. 22, 2005), while in Ohio there were two more rejections of Blakely claims, see

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State v. Gann, 2005 WL 406214, 2005-Ohio-678 (Ohio App. 12 Dist. Feb. 22, 2005); State v. Moore, 2005 WL 405706, 2004-Ohio-676 (Ohio App. 3 Dist. Feb 22, 2005). And the always active California now has more than 500(!) on-line appellate dispositions mentioning Blakely.In addition, the New Jersey Supreme Court this coming Tuesday (March 1st) at 10:00 am is hearing a set of major Blakely cases. That argument can be followed via live webcast at this link. The New Jersey Commission To Review Criminal Sentencing has prepared a helpful informational report about the two cases NJ Blakely cases, Natale and Abdullah, which can be downloaded here: Download nj_commission_blakely_report.pdf I have previously detailed in posts here and here background on the engaging and dynamic story of Blakely in New Jersey, and I posted the first set of NJ Supreme Court briefs here. I have now received, and provide below, what I believe are the final set of briefs in these NJ Blakely cases:Download defense_nj_natale_supp. Response Brief.pdf Download state_nj_natale_supp. Response brief.pdf February 24, 2005 at 12:45 AM

February 23, 2005

Will SCOTUS care to clean up the plain error mess?With the Chief Justice ailing and the Supreme Court plenty busy with other big ticket cases, I doubt the Court is eager to take on another guideline sentencing case. Nevertheless, as documented in my circuit-by-circuit review here, the plain error issue is big mess in the circuits, and today's Second Circuit decision in Williams (basics here) suggests a three-way split on this issue is here to stay. Given especially the goal of sentencing uniformity, which the Booker remedial majority was purportedly seeking to serve, an awfully strong case can be made that SCOTUS needs to again step in quickly to clean up these remedy issues. Indeed, given that the government wants to take Ameline en banc in the Ninth Circuit (and indicated in its Ninth Circuit brief that it might seek to go en banc in the Fourth and Sixth Circuits, too), the Supreme Court ought to consider jumping in simply to prevent an enormous waste of litigant and judicial resources dickering over these issues.The Supreme Court now has at least one ready vehicle for taking up these issues, because defense counsel for Vladimir Rodriguez, the defendant who got the short end of the Eleventh Circuit's plain error stick, have now filed for cert. The Rodriguez petition, which can be downloaded below, nicely summarizes where matters stand:

Barely one month after [Booker], the Circuits have fallen into a sharp threeway conflict .... The Third, Fourth, Sixth, and Ninth Circuits have followed a rule under which a sentence longer than the maximum Guidelines sentence justified by the facts found by the jury or admitted by the defendant almost always constitutes

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plain error requiring resentencing. The First and Eleventh Circuits have adopted a rule under which such sentences almost never constitute plain error. And the Second Circuit has adopted a third approach: remanding in every case to ask the district court to make the plain error determination. This conflict affects a massive number of cases, and concerns an important issue that is squarely and cleanly presented here.

Download rodriguez_cert_petition.pdf February 23, 2005 at 10:20 PM

More Booker wisdom from the 2d CircuitSeeking to shed more light on the handling of pipeline cases, the Second Circuit has weighed in again, and again in an opinion by Judge Jon Newman, though US v. Williams, No. 04-2882 (2d Cir. Feb. 23, 2005) (available for download below). In Williams, Judge Newman purports to "amplify our reasons for the form of remand we have used in some pending cases with sentences that are erroneous in light of Booker." Here are some choice quotes:

In short, there is no need to apply the plain error doctrine in the sentencing context with precisely the same procedure that has been used in the context of review of errors occurring at trial, whether civil or criminal. Moreover, we note that the Supreme Court has never applied the Olano formulation of the plain error doctrine to ignore a judge’s sentencing error that affected substantial rights, nor required a court of appeals to do so.... To avoid the deficiencies of either a routine affirmance or a routine remand for resentencing, we ruled in Crosby that we would normally remand for determination by the sentencing judge of whether a materially different sentence would have been imposed. This disposition avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing.

Download 2d_cir_042882.cr.WILLIAMS.pdf February 23, 2005 at 07:50 PM

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Criminal justice, constitutional law, federalism and hot button issuesThe Supreme Court's Johnson decision today (basics here) about racial segregation in prisons — as well as its cert. grant yesterday in Gonzales v. Oregon concerning federal challenges to Oregon's "Death With Dignity" law (law.com background here, blogsphere commentary here and here) — has me again noticing the frequent intersection this SCOTUS term of criminal justice, constitutional law, federalism and hot button issues. Of course, these intersections are obvious in the (already argued) medical marijuana case of Ashcroft v. Raich (lots of details here and here), and the (soon to be argued) prison RLUIPA case of Cutter v. Wilkinson (background here), the (soon to be decided?) juvenile death penalty case of Roper v. Simmons, and even some little known case called Blakely (see here and here for more on Blakely and federalism).A decade ago, after Lopez, and even five years ago after Morrison, many commentators thought we might see the so-called "federalism revolution" come to criminal law. But, as Craig M. Bradley noted last year in Federalism and the Federal Criminal Law, 55 Hastings L.J. 573 (2004), "very few cases have been reversed based on Lopez or Morrison." Though the post-argument buzz was that Raich is unlikely to change this basic storyline, I am intrigued by the broader cross-cutting of jurisprudential principles in all of these cases. (Fortunately, I have the benefit of lots of Ohio State colleagues to discuss these issues. As I noted here, Cutter is something of a law school civil war because OSU-affiliated lawyers are on both sides. And my colleague Marc Spindelman has been examining the Oregon assisted suicide case for some time, and his article "A Dissent from the Many Dissents from Attorney General Ashcroft's Interpretation of the Controlled Substances Act," 19 Issues in Law & Medicine 3 (2003) (available here), thoughtfully explores some of the federalism ideas in that case.)February 23, 2005 at 03:21 PM

The Third Circuit speaks more fully on Booker (and Almendarez-Torres)As I noted in my recent circuit round-up, the Third Circuit has not directly considered plain error issues but has established a pattern of Booker remands (examples here and here and here). Today, in US v. Ordaz, No. 04-1671 (3d Cir. Feb. 23, 2005) (available here), the Court provides its fullest discussion of Booker issues to date, though it does not make the status of plain error any more clear.Specifically, in Ordaz, the Third Circuit continues its seemingly odd practice of simply remanding, without any plain error discussion, for resentencing in light of Booker (which, I suppose, is better than the Eighth Circuit's recent practice, discussed here, of simply affirming sentences in light of Booker). The Ordaz case has an added twist because the defendant was complaining about both offense-related guideline enhancements and prior conviction findings, and the Ordaz court had to address the prior conviction claim because it impacted the available statutory maximum sentences. Here are some key passages from the Ordaz court's work:

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With respect to Ordaz's challenge to the District Court's determination regarding drug weight and the enhancements (other than for prior convictions), the issue is best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker.We turn to Ordaz's challenge to the enhancement for prior convictions [which impact his maximum statutory sentence].... Ordaz argues that the fact of prior convictions should have been submitted to the jury.... Ordaz argues that because of the decision in Blakely, "it is clear that Almendarez-Torres cannot stand." We do not gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries. Nonetheless, as an inferior federal court we have the responsibility to follow directly applicable Supreme Court decisions. The holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds otherwise. Thus, because we are bound by Almendarez-Torres, we hold that the District Court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, notwithstanding that the sentences were based, in part, on facts found by a judge rather than a jury.

February 23, 2005 at 01:53 PM

SCOTUS speaks on racial segregation in prisonLyle Denniston at SCOTUSblog has here the key highlights of today's Supreme Court ruling in Johnson v. California, No. 03-636 (S. Ct. Feb. 23, 2005) (syllabus here), which addresses the constitutionality of the California Department of Corrections' unwritten policy of racially segregating prisoners as they enter a new correctional facility. The Court holds that strict scrutiny is the applicable standard and then remands.Though the Johnson decision will be of interest mostly to folks concerned with corrections and/or equal protection doctrine, a quick skim reveals notable dicta in all the Johnson opinions. Especially catching my eye is Justice O'Connor's statement for the majority that the CDC's rule must be subject to strict scrutiny or else the Court "would undermine our 'unceasing efforts to eradicate racial prejudice from our criminal justice system.' McCleskey v. Kemp, 481 U.S. 279, 309 (1987)." (I trust my students will appreciate the irony of citing to and quoting from McClesky for this proposition.)February 23, 2005 at 10:42 AM

Lots more on Booker from the Sixth CircuitA day without a Booker opinion from the Sixth Circuit is almost like a day without sunshine. Though yesterday was cloudy, the sun is shining brightly today with a lot of interesting Booker developments. Here are the highlights:First, I see from this new opinion that the Sixth Circuit has decided to "publish" its decision from two weeks ago in Hines (discussed at length here).

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Second, in US v. Hazelwood, No. 03-6232 (6th Cir. Feb. 23, 2005) (available here), the court orders resentencing after finding an error in the calculation of the defendant's guideline range. The Hazelwood court explains that "regardless of whether the Guidelines are mandatory or merely advisory, district courts are required by statute to consult them, and ... a district court's misinterpretation of the Guidelines effectively means that it has not properly consulted the Guidelines."Third, in the unpublished ruling of US v. Gonzales, No. 03-4297 (6th Cir. Feb. 22, 2005) (available here), the court provides this one paragraph explanation of for ordering a Booker remand (which is provides a stark contrast to the Eighth Circuit's work in the comparable Little Dog discussed here ):

The sentence in this case was based on an offense level of 20 calculated from the jury verdict plus a 14-level "career criminal" sentence enhancement based on the two prior convictions. Under Booker and Fanfan, prior convictions may be used as upward adjustments without violating the Sixth Amendment prohibition on adjustments based on judicial fact finding. Booker, 125 S. Ct. at 756; accord Oliver, 2005 WL 233779 (6th Cir. Feb. 2, 2005). Even so, Booker and Fanfan establish that the Guidelines are now advisory as to all sentences. Since the mandatory element of the Guidelines has been removed, leaving the sentence to the reasonable discretion of the District Court, Judge Dowd may no longer approve of the 22-year sentence which he was required to impose in this case. This inference is particularly strong here, where he sentenced the defendant at the bottom of the Guideline range. It is unclear what sentence he might impose if not bound by the career criminal provisions of the Guidelines.

Finally, in US v. May, No. 04-4314 (6th Cir. Feb. 23, 2005) (available here), Booker does not even get mentioned as the court affirms a guidelines sentence in which the defendant appealed district court's failure to downward depart on a claim of sentence entrapment. Given the reasoning on the just mentioned Gonzales case, the Booker-free May affirmance might be questioned (although perhaps counsel in May failed to make a Booker claim on appeal).February 23, 2005 at 10:04 AM

Another questionable 8th Circuit affirmanceThough the Eighth Circuit has an en banc hearing scheduled for next month to address plain error (details here), the court continues to affirm a number of sentences imposed pre-Booker in ways that are, in my view, quite puzzling and do not seem fully in step instructions set out in Justice Breyer's last paragraph in Booker. Prior curious affirmances came in Lussier (discussed here) and in Killgo (discussed here), and the latest example is in US v. Little Dog, No. 04-1834 (8th Cir. Feb. 22, 2005) (available here).Because the defendant in Little Dog apparently sought to raise and brief a Blakely/Booker claim for the first time on appeal, I would think the Booker claim would be subject to plain error analysis. But the Eighth Circuit does not address plain error in any way in Little Dog, nor does the court directly address the defendant's assertion that the district court "would have sentenced him differently if the Guidelines were not mandatory," or

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review the defendant's 30-year sentence for reasonableness. (Recall that the Eighth Circuit in Killgo suggested it should still conduct a review for reasonableness even if it finds no Sixth Amendment error.)Rather, approaching the case almost in a pre-Booker manner, the Little Dog court first notes that enhancements based on criminal history "need to be established by proof beyond a reasonable doubt," and then cites an oblique statement from the district court concerning the prospect of a downward departure for the defendant. The court then concludes by asserting: "We find no discord between the district court's decision and Booker."February 23, 2005 at 09:29 AM

A 5th Circuit Booker sighting (or citing)Last week I put out this APB for the Fifth Circuit, and a reader has now pointed me to what I believe is the first mention of Booker from the Fifth Circuit. Here is the full text of the per curiam order in US v. Barrera-Saucedo, 04-20943 (5th Cir. Feb. 22, 2005) (available here):

IT IS ORDERED that appellant’s motion to expedite the appeal is granted. IT IS FURTHER ORDERED that appellant’s motion to vacate and remand in light of USA v. Booker is granted.

I do not have any details about the case, and thus without more explanation from the 5th Circuit it is hard to tell if this is a consequential ruling. It seems, at least for now, that the 5th is continuing to exercise its right to remain silent on Booker.February 23, 2005 at 09:01 AM

February 22, 2005

Plain error Booker circuit reviewWith the First Circuit joining the plain error fun with it decision today in Antonakopoulos (basics here), I think we now officially have at least half of the circuits officially weighing in concerning the application of plain error to pipeline cases in which the defendant did not raise a Blakely/Booker issue at sentencing. Though these rulings cannot be easily summarized, I will try in very short space to provide a run down of where plain error stands, circuit-by-circuit:1st: Antonakopoulos provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.2nd: Crosby provides for remands for reconsideration so district court can speak to prejudice.3rd: No direct consideration of issue but a distinct pattern of remands.

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4th: Hughes provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants.5th: Silent.6th: Oliver (which now rules the roost) provides for a more liberal plain error standard which seems likely to be satisfied by most defendants.7th: Silent.8th: Silent, but an en banc consideration is in the works.9th: Ameline provides for a more liberal plain error standard which seems likely to be satisfied by most (if not all) defendants. (Government's en banc motion pending.)10th: Silent, but an en banc consideration is in the works.11th: Rodriguez provides a relatively strict plain error standard requiring defendants to show prejudice case-by-case.DC: Silent.I am doing this mostly from memory, so I may have missed something that I trust commentors will fix. Also, I am certain that this summary review glosses over many nuances in all the holdings.February 22, 2005 at 06:42 PM

A Booker musingIf you are like me (or like Article III Groupie), you have perhaps always wondered what federal judges do on the weekend. (Of course, we already know what cows do on the weekend: they go to the moooooovies (hat tip to a toddler comedian I know).)Now I know that at least one federal judge spends time thinking about federal sentencing because US District Judge Richard Kopf (of Wanning fame ) was kind enough to send me a copy of what he calls "A Short Essay on Booker as a Thought Experiment for District Judges" which is dated this past Sunday. And I have set up this essay, which can be downloaded below, with a bit of whimsy because it ends with a whimsical footnote. But, before it gets to that footnote, it provides some interesting Booker food-for-thought.Download judge_kopf_booker_essay.pdf February 22, 2005 at 06:17 PM

Two for Tuesday from the First CircuitAs I suspected here, it appears that at least one Circuit took advantage of the long weekend to polish Booker opinions. Specifically, the First Circuit today issued Booker rulings in US v. Antonakopoulos, 03-1384 (1st Cir. Feb. 22, 2005) (available here), and US v. Sahlin, 04-1324 (1st Cir. Feb. 22, 2005) (available here). Antonakopoulos is the big one, as the court begins by noting the decision sets forth "our standards for review of unpreserved claims of sentencing errors in the aftermath" of Booker:

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To summarize our position at the outset, we intend to apply, in accordance with Justice Breyer's admonition, conventional plain-error doctrine where a Booker error exists but has not been preserved. The Booker error is that the defendant's Guidelines sentence was imposed under a mandatory system. The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system. A mandatory minimum sentence imposed as required by a statute based on facts found by a jury or admitted by a defendant is not a candidate for Booker error. The first two Olano requirements — that an error exists and that it is plain at the time of appeal — are satisfied whenever the district court treated the Guidelines as mandatory at the time of sentencing. But to meet the other two requirements — that this error affected defendant's substantial rights and would impair confidence in the justice of the proceedings — we think that ordinarily the defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new "advisory Guidelines" Booker regime.... We engage in case by case review and we reject certain automatic reversal rules.

Sahlin also merits attention, since it purports to "consider the effect of the Supreme Court's decision in Booker in cases involving guilty pleas." In that context, the First Circuit rejects "Sahlin's claim that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by Booker."February 22, 2005 at 03:33 PM

More SCOTUS Booker GVRsThe Supreme Court is back in action today. Though we did not get either of the sentencing opinions I am eagerly awaiting (background here), we did get a bunch of Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker). As detailed in this list of orders, there were more than 30 Booker-inspired GVRs today.Of course, the (newly renovated) SCOTUSblog is the place to go for all the Supreme Court action. Among the High Court's work today is a 5-4 decision on a double jeopardy claim in Smith v. Massachusetts (syllabus here), which produced unusual coalitions of Justices (and different coalitions than in Blakely, though again Justices Stevens, Scalia, Souter and Thomas are together on the majority opinion which, per Justice Scalia, reverses a state conviction). February 22, 2005 at 10:36 AM

February 21, 2005

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A long weekend in reviewOf late I have been finding it personally useful to thematically organize and link recent posts (as I did here and here last week), and thus below I have done more of the same to wrap-up the end of a long weekend:BOOKER CIRCUIT COURT DEVELOPMENTSIs it en banc time for Ameline ? A questionable 8th Circuit affirmance Some smaller circuit Booker dispositions OTHER BOOKER DEVELOPMENTS AND COMMENTARY

Collecting, parsing and sharing post- Booker data Layperson's Guide to Booker Compilation of post- Booker federal decisions More on departures and variances: not quite as easy as 123 Songs in the key of 3553

February 21, 2005 at 11:50 PM

Mandatory minimum challenges and test cases?Especially with the plain error doctrines creating the prospect that some (perhaps many) defendants will not get the benefits of the Blakely/Booker rulings simply because they failed to raise the issue at pre-Blakely sentencings, I have been wondering lately whether defendants, in both state and federal systems, still subject to mandatory minimum provisions based on judicial fact-finding have been raising constitutional challenges simply in order to preserve the issue until the Supreme Court may have occasion to reconsider its Harris ruling. Many folks have been predicting Harris' demise since Blakely was decided, and that decision's status was left unaddressed in Booker (although I have heard arguments that Harris is stronger and that Harris is weaker after Booker).More generally, as I suggested in this post about broader due process principles, the reasoning of Justice Stevens' merits majority in Booker might support a wholesale reconsideration (and invigoration) of due process concepts at sentencing. Indeed, as one thoughtful commentor suggested here (see the third comment), the whole arena of mandatory minimum sentencing might be ripe for new constitutional challenges in the wake of Blakely and Booker. I wonder if there are any on-going efforts within the defense bar to identify sympathetic defendants with compelling facts to provide an effective test case for a new set of constitutional arguments against mandatory minimum sentencing.UPDATE: A reader followed-up on this post by sending along a recent cert. petition challenging, on equal protection grounds, an application of North Carolina's Habitual Felon Act. Though this petition, which is available for downloading below, does not build on Blakely and Booker, it reveals one of the many ways in which the application of mandatory sentencing laws can be challenged.Download nc_mandatory_cert_pet.doc

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February 21, 2005 at 09:36 PM

Is it en banc time for Ameline?David Porter over at the Ninth Circuit Blog here last week detailed that the government has sought expedited consideration of whether to rehear en banc the Ninth Circuit's important Ameline ruling (basics here, commentary here), and has also filed a motion to defer disposition of all pending direct criminal appeals presenting Booker claims pending resolution of the government's petition for rehearing en banc). A copy of the government's en banc petition is available here. In addition to providing the government's arguments on plain error issue, the brief has some very interesting statements about the practical consequences of mass remands in the circuit"whose district judges impose more Guidelines sentences per year than any other Circuit."February 21, 2005 at 05:21 PM

Collecting, parsing and sharing post-Booker dataAs stressed in much of the USSC testimony last week, the role and importance of the US Sentencing Commission in collecting and disseminating post-Booker data cannot be overstated. (This was one focal point of my USSC testimony and recent blog posts here and here.) Indeed, I recently received a note from an insightful reader that stated this point so eloquently I am moved to quote his sentiments:

The Commission must take the lead in documenting statistically-valid data in order to help judges better understand national sentencing patterns. Only then can we hope for penal consistency that falls in line with the sentencing factors outlines in 18 USC 3553(a).

But, as suggested in prior posts, such data collection is easier said than done, especially if the lines between guidelines, departures and variances end up becoming blurry (as discussed here and here). Further, at the USSC hearings, Professor Steve Saltzberg and USA Robert McCampbell both insightfully stressed that we ought to be concerned more with the magnitude of variances than the raw number, since large variances pose a much greater risk of disparity than small ones. (McCampbell earned extra points in my book when he actually quoted directly from my article Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000), where I suggested at pp. 96-101 that appellate review of departures focus more on the extent of departure rather than on the threshold decision to depart.)Of course, in this context, it should be highlighted that the USSC is not the only institution collecting data. Indeed, at the USSC hearings, USA Robert McCampbell noted that DOJ "will be collecting data," and McCampbell interestingly went to great lengths to stress that DOJ's internal recording form "does not include a way to report the name of the judges ... [because the] individual name of the judge won't help all of us ... make the policy decisions we need to make."

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Though I suspect most judges will generally be glad to hear that DOJ is not "taking names," it seems worth noting that a lot of state sentencing systems include so called "judge-identifiers" in their sentencing data set. But, putting that issue aside, I wonder if DOJ might consider making public the data it collects as the post-Booker world develops. More generally, I hope that any and all institutions besides the USSC that are tracking post-Booker developments will generally have a sharing attitude. February 21, 2005 at 04:05 PM

Layperson's Guide to Booker The fine lawyers at the Federal Defender Services of Wisconsin were kind enough to send me a copy of their recent newsletter (quaintly called the Doing Time Times), which includes an extended section titled "A Layperson's Guide to Booker." This document, which can be downloaded below, proves that the folks at Booker ground zero can help the average person understand Booker. Now they just need to explain it to the rest of us.Download laypersons_guide_to_booker.rtfFebruary 21, 2005 at 02:52 PM

Perspectives on sex offender sentencing and treatmentIn recent Booker-related posts here and here, I have stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker. In an interesting post here, TalkLeft spotlights this very important issue in the context of sex offender sentencing and treatment. In addition to encouraging a review of that post, here are some earlier related posts on sex offender sentencing:The power of the headline-making crime Intriguing report about sex offenders Sex offender sentencingFebruary 21, 2005 at 09:44 AM

February 20, 2005

Compilation of post-Booker federal decisionsWith thanks to the Third Circuit Blog for the pointer, I see that the the Office of Defender Services Training Branch (ODSTB) of the Administrative Office of the U.S. Courts has this Blakely / Booker page for defense counsel. Though the website is a bit dated (by reflecting more post-Blakely than post-Booker developments), the site now includes a link to this terrifically comprehensive outline of post-Booker decisions as of February 17, 2005. Prepared by Frances H. Pratt, Research and Writing Attorney Office of the Federal Public Defender in Alexandria, Virginia, this outline provides the most complete review

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of post-Booker decisions I have seen (including a lot of habeas decisions that I have not had a chance to discuss on the blog).February 20, 2005 at 05:30 PM

A questionable 8th Circuit affirmanceAn insightful reader has reminded me that, in addition to all the late week circuit Booker action spotlighted here, the Eighth Circuit's affirmance of a guideline sentence in US v. Lussier, 2005 U.S. App. LEXIS 2735 (8th Cir. Feb. 17, 2005) (available here), merits mention and some pondering. This Lussier case is notable because, without any detailed exploration of new appellate review standards, the Court purports to apply a post-Booker "reasonableness" standard to affirm a district court's pre-Booker sentence. In a fairly cursory opinion, the Lussier court begins its review of the district court's pre-Booker sentencing decisions by citing Booker in support of this statement of the standard of review: "We give deference to a district court's sentencing decision and will reverse a sentence applying the Guidelines only if it is unreasonable." But after this mention of Booker, the Lussier court proceeds to analyze the case on review as if Booker did not change federal sentencing realities. The court relies on pre-Booker precedents as it assesses (and affirms) the district court's judgment that the defendant had not met his burden of establishing an entitlement to a sentencing reduction under USSG 2K2.1(b)(2) providing for a reduced offense level if an illegal firearm was possessed "solely for lawful sporting purposes or collection." In so doing, the Lussier court does not address the (quite significant) possibility that under the new Booker sentencing system, the district court might have sentenced the defendant much differently — indeed, might have been obliged to sentence the defendant much differently — in light of the 3553(a) factors.As I read Justice Breyer's remedy opinion, a reviewing court's task post-Booker is not simply to review if guideline calculations were done reasonably, but rather to ensure that, in light of the 3553(a) factors, the sentence imposed was reasonable. Since sentencing at the district court took place pre-Booker, no one had analyzed the Lussier case in light of the 3553(a) factors. Consequently, even though the guidelines may have been calculated properly, I think a remand for reconsideration would have been more appropriate in this case. (Notably, this seemed to be the Second Circuit's approach in US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005), where the court remanded on the basis of Booker and Crosby even after it concluded the applicable guideline range had been properly calculated.)February 20, 2005 at 01:07 PM

February 19, 2005

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Songs in the key of 3553Thanks to a thoughtful soul (and reader), I am now a member of iPod nation. And after spending some time playing with my music library, I recalled that many folks (present company included) have taken to describing Booker in song. So, for those musically inclined, I offer the following Booker playlist (which readers are, of course, encouraged to supplement):

The Who, Won't Get Fooled Again (song and lyrics cited in this post) Talking Heads, One in a Lifetime (lyric cited in this post and linked article) Bob Dylan, Tangled Up in Blue (lyric cited in this post and linked article) REM, It's The End Of The World As We Know It (lyric in this article) Bob Dylan, All Along the Watchtower (lyric in this article) Lou Reed, Talk a Walk on the Wild Side (brilliant Blakely parody here) Dan Hicks, How Can I Miss You If You Won't Go Away (song referenced by US

Attorney Robert McCampbell as detailed in this post)February 19, 2005 at 10:38 PM

More on departures and variances: not quite as easy as 123In this recent post, I spotlighted the importance of a post-Booker protocol in which judges first (1) calculate an applicable guideline range, then (2) make traditional departure determinations, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on 3553(a). I also expressed concern that it would be dangerously easy for courts to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. (TalkLeft has an astute recent post, Booker, FanFan 1-2-3, commenting on these matters.)A district court Booker decision that just came on-line, US v. Mullins, 2005 WL 372209 (WD Va., Feb. 16, 2005) (available here), confirms that some post-Booker decisions may not be as easy as 123. In Mullins, Chief US District Judge James Jones finds it "reasonable to sentence the defendant below the advisory sentencing guideline range" after his guilty plea to two firearm charges, but does so after suggesting, but not conclusively ruling on, the possibility of a departure:

The ground for the requested downward departure here is unmentioned in the Sentencing Guidelines, and thus under pre-Booker procedure, I would determine whether the fact that the conduct used to compute the guideline range is no longer criminal is sufficient to justify a departure. Whether consideration of guideline authorized departures in the post-Booker world is necessary is a question that remains to be answered. I need not decide that issue, however, since I find that in any event, a variance below the applicable guideline range is called for in this case. There has been yet no authoritative formulation following Booker as to the weight to be given to the formerly mandatory sentencing guidelines. Regardless of the precise weight to be given to the Sentencing Guidelines, however, I find that

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evaluation of the statutory sentencing goals justifies a sentence below that of the guidelines. The applicable sentencing statute left untouched by Booker requires a sentencing court to impose a sentence not greater than necessary to comply with certain listed sentencing purposes, including "afford[ing] adequate deterrence to criminal conduct." 18 U.S.C.A. § 3553(a)(2)(B). In the present case, neither the defendant nor others can be deterred by a sentence based on the guideline range for possession of a semiautomatic assault rifle, since that conduct is no longer criminal. Instead, the more apt guidelines range should be based on the conduct that is still criminal — selling a firearm without the proper documentation. That offense has a base offense level of 12. USSG § 2K2.1(a)(7). Adding the stipulated increases and subtracting the reduction for acceptance of responsibility produces a total offense level of 21, which has a sentencing range of 37 to 46 months for Criminal History Category I. Taking into account the guidelines as well as the sentencing goals of § 3553(a), I find that a reasonable sentence in this case is 40 months imprisonment. This sentence gives recognition to the guideline range while also applying an appropriate reduction because of the removal of criminality of the offense used to calculate that range.

Because of the understandable decision not to rule expressly on the departure issue, I think the Sentencing Commission will have to code the Mullins case as a "variance." However, both because a departure likely would have been appropriate and because Judge Jones linked the degree of his variance to the guidelines, this case hardly seems to be a "non-Guidelines" sentence. Mullins thus spotlights how hard it will be for the USSC to code and present effectively post-Booker data, even though as noted here everyone consider such data work to be among the USSC's most critical tasks now.February 19, 2005 at 11:51 AM

A federal capital trifecta!A thoughtful reader was kind enough to send me a copy of a (long) decision addressing pre-trial issues in a federal capital case which was filed yesterday by Chief US District Judge Mark Bennett (ND Iowa) in US v. Johnson, No. CR 01-3046-MWB (N.D. Iowa Feb. 18, 2005). The first 95 pages of the opinion, according to my source, "has the virtue of being a cure for insomnia," but pages 96-118 merits everyone's attention because here Judge Bennett provides perhaps the first ever comprehensive explanation and justification for "trifurcation" in a federal death penalty case. You can download the whole opinion below.Judge Bennett's analysis in Johnson is fascinating, and earns extra points in my book for its many cites to the copious law review literature on capital sentencing procedures. It also reaches this wonderfully nuanced conclusion:

[N]otwithstanding that § 848 [the federal capital sentencing statute] expressly provides for a "bifurcated" proceeding, and there is no constitutional requirement for proceedings in a different form, the court concludes that § 848(j) permits, and

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the circumstances in this case require, that the proceedings in the case be "trifurcated," as described above.

Given the remarkable efforts that the government has recently gone through to get the high-profile capital case in Houston tried exactly as they wish (some background here), it will be interesting to see if there might be an immediate appeal from this trifurcation order.Download johnson_trifurcate_opinion.pdf February 19, 2005 at 10:50 AM

Some smaller circuit Booker dispositionsAs I predicted here, we did get some late Friday Booker action from the circuit courts. But none of the Booker rulings coming on-line from last night (or the previous day) seem all that consequential, and thus I will do just a very quick summary of rulings from the Second, Third, Ninth and Tenth Circuits:From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.If I have missed some nuances in these cases or other recent circuit disposition, readers are highly encouraged to use the comments to fill out the Booker circuit story.February 19, 2005 at 08:38 AM

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February 18, 2005

More on victims at sentencingIn this recent post, I talked through some of the questions I had about the role of crime victims at sentencing after this topic came up in a number of interesting ways during this week's US Sentencing Commission hearing (overall coverage linked here, specific highlights here and here). Driving the topic now at the federal level, as both Judge Cassell and victim advocate Collene (Thompson) Campbell highlighted for the USSC, is Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771). Proving he is the hardest working man in law business, Judge Cassell followed up the Commission buzz and my own queries with a terrifically insightful letter to the USSC covering "Victim Access to Pre-Sentence Reports" and "Defining the Victim." Judge Cassell thoughtfully cc:d me on the letter and has allowed me to post it here:Download cassell_victim_letter.rtf And, excitingly, this developing dialogue prompted Mike Connelly of the Wisconsin Sentencing Commission to send me some information from his state about experiences with victims at sentencing. A brief but thoughtful document entitled "Victim Information in Wisconsin Courts, 2003 – 2004" is also available here for download. In addition, Mike shared his insight that some victims' organizations have been concerned at the lack of implementation of victims' rights provisions and have been looking at means to consolidate and improve data collection from local jurisdictions to state and national levels. (I like hearing I am not the only one who beats the drum for sentencing data.)Download wisconsin_victim_data.doc February 18, 2005 at 04:52 PM

Giddy with anticipation...I am back in (chilly) Ohio, and was pleased to discover upon my return that it has been a relatively calm Booker day, at least so far. But recalling that the last two Fridays brought a lot of late day Booker circuit action (examples from last week are here and here, from the prior week here and here), I suppose I should be prepared to get on-line late tonight to find the day has not in fact been all that quiet.While getting prepared, I am already a bit giddy with anticipation for next week's possible jurisprudential fireworks. On the Booker front, with a long weekend to polish opinions, I suspect we might see next week some more notable lower federal court rulings. And, adding to the excitement, the SCOTUS folks are back in business with arguments scheduled next week, the expected announcement of some cert. grants, and the possibility of some more opinions. (Of course, I am watching for decisions in Roper v. Simmons, the juvenile death penalty case, or Shepard v. US, the criminal history case.)Beyond court action, this calender here details a number of interesting Booker events taking place next week. And today I can add to the list a Washington Legal Foundation

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Panel Discussion entitled "The Future of Federal Sentencing: 'Reasonable' Judicial Discretion or Congressional Intervention?" taking place on Thursday, Feb. 24 at 9am in Washington DC. More details about the event can be found here, and I am already looking forward to watching the webcast.February 18, 2005 at 03:54 PM

Heading home after a great DC weekProviding the flip-side of this post summarizing earlier developments, as I get ready to head home after an exciting DC week, I have set out below links to recent developments and commentary. I hope to be back on-line by late Friday afternoon, though the following provides lots of reading in the meantime:USSC HEARING HIGHLIGHTS AND COMMENTARYHighlights from the USSC hearing transcripts Departures, variances and defense advocacy Topical highlights from Day 2 of the USSC hearings The importance of, and another great example of, district court Booker explanations The USSC hearings continue... Pondering a victim's role in sentencing A few highlights from Day 1 of the USSC hearingsBOOKER CIRCUIT COURT RULINGS AND COMMENTARY

Time to put out an APB for the 5th Circuit? Sorting the pipeline cases 11th Circuit speaks on retroactivity Another impressive Sixth Circuit Booker episode Booker developments in the Second Circuit In today's great episode of how the Sixth Circuit turns... Sorting through the Circuit circus

February 18, 2005 at 07:55 AM

Highlights from the USSC hearing transcriptsThe US Sentencing Commission, to its great credit, has not only the written testimony from its hearing this week linked here, but also now has up transcripts with all the live testimony. The transcript from Tuesday afternoon is here, from Wednesday morning is here. (And while I am giving out credit, a wise reader noted that USSC Chair Hinojosa and Judge Sim Lake used the term "vary" in their documentation memo (discussed here) the week after Blakely. Thus, they deserve credit along with Judge Cassell for coining the term "variance" to describe post-Booker non-guideline sentences.)

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The USSC hearing transcripts are very long — a total of nearly 300 pages! — but the Q&A after each panel really provides a rich addition to the written testimony and also reveals what some of the Commissioners are thinking through. In addition, there are 13 must-read pages from all the transcripts, appearing at the very end (pp. 137-150 of the second transcript) in the testimony of Robert McCampbell, who is the US Attorney for the Western District of Oklahoma and chairs the AG's Advisory Sub-Committee on Sentencing for DOJ. Though McCampbell's written testimony largely tracked the written testimony of Chris Wray for DOJ at the House hearing, McCampbell made a number of distinct (and extraordinarily insightful) points in his oral presentation. In addition, through the Q&A with the Commissioners, McCampbell shed a lot of light on DOJ's biggest concerns as the post-Booker world unfolds. This weekend I hope to do some additional commentary, based on this testimony, on what we might soon expect to see from DOJ. In the meantime, go read those 13 pages, which McCampbell starts with this highlight:

When I read those two [Booker] opinions back to back, I have to say I was reminded of the old country-western song, "How Can I Miss You if You Won't Go Away?"

February 18, 2005 at 03:59 AM

Time to put out an APB for the 5th Circuit?Though a few smaller circuits, specifically the First and DC Circuits, have not yet given us any notably Booker rulings, the total Booker silence from the Fifth Circuit seems particularly noteworthy. We are now more than a full five weeks since Booker was handed down, and every other circuit with a sizeable caseload has issued at least one major and some minor Booker rulings. (The ever exciting Sixth Circuit already has handed down more than a dozen notable Booker rulings.)The quietness of the Fifth Circuit is especially interesting given that (1) last summer the Circuit very quickly addressed Blakely's applicability to the federal system and ruled in Pineiro less than three weeks after Blakely that the federal guidelines were not affected, (2) the Circuit disposed of nearly 200 appeals raising Blakely issues in the 6 months between Pineiro and Booker, and (3) the Circuit has a huge appellate and district court sentencing caseload (second only to the Ninth Circuit's); indeed, in Pineiro the Fifth Circuit explained that it had to rule quickly on Blakely because of the "unremitting press of sentencing appeals."I have not heard any official word of the Fifth Circuit planning for en banc consideration of Booker issues, but perhaps some form of official or unofficial collective action by the court is slowing it down. Given the fact the circuit faces on average more about 100 appeals per month, and also given the likelihood that appeals increased after Blakely, there must be an enormous backload of cases piling up while the Fifth Circuit tries to find its post-Booker voice.February 18, 2005 at 03:10 AM

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Capital notes around the blogsphereFor those seeking a brief Booker break, check out TalkLeft's two notable pieces on the death penalty, with this post on continuing problems in Illinois' death penalty system and this post questioning the guilt of the defendant executed on Thursday in Texas. And the PRACDL Blog provides here the legal basics of the hotly litigated federal capital trial in a high-profile alien smuggling case in Houston. Also, the Death Penalty Information Center has at its website a number of interesting new items, including this item about the growing elderly population on death rows.February 18, 2005 at 02:22 AM

February 17, 2005

Sorting the pipeline casesThe Christian Science Monitor has this article discussing a range of Booker fall-out issues, and gives special attention to the challenges courts are facing sorting out all the cases in the appellate pipeline. A similar well-done article from the National Law Journal is available here at law.com.Additional news on this front comes from the Third Circuit Blog, which here reports that the Third Circuit "has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less." The post also reasonably suggests that the Third Circuit will be "using these letters as the primary means of screening cases for remand under Booker." A thoughtful reader was kind enough to pass along one of these letters, which can be downloaded below.Download 3d_cir_req_for_letter_on_booker.pdf February 17, 2005 at 10:25 PM

I am not a journalist, but I did sort of play one on a panel todayAs Howard Bashman noted here, my DC afternoon involved participating on a panel addressing "The Effects of New Technologies on Covering the Court." Terrifically moderated by Pete Williams, my co-panelists Joan Biskupic, Lincoln Caplan and Dahlia Lithwick had a lot of interesting and thought-provoking comments about how the internet and blogs have impacted the coverage of the Supreme Court and legal issues more generally. Howard's ears should have been burning, since his role as SCOTUS' "38th law clerk" was mentioned. The discussion was mostly Booker-free, which was a refreshing change, and the evening was capped by a big dinner at the Supreme Court and a stirring speech by Justice Kennedy. Heady stuff for a law geek used to just rambling on-line in my pajamas.February 17, 2005 at 10:10 PM

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11th Circuit speaks on retroactivityI have been off-line playing the DC tourist most of the day and now I am off to participate in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court (discussed previously here). But as I dash out I see that from Appellate Law & Practice here that the 11th Circuit has ruled per curiam in Varela v. US, No. 04-11725 (11th Cir. Feb. 17, 2005) (available here) that Blakely and Booker are not retroactively applicable to cases on collateral review. I hope to comment on this case, and other DC news and notes, later tonight.UPDATE: The work of the Eleventh Circuit in Varela is both unsurprising and uninspiring. As have most district courts in the wake of Blakely and Booker, the Varela court simply parrots parts of the Supreme Court's ruling in Schriro concerning Ring's non-retroactivity to declare that Blakely and Booker are not retroactively applicable to cases on collateral review. Unlike the Seventh Circuit's more thorough and thoughtful effort in McReynolds (details here), the Eleventh Circuit in Varela does not grapple with or even acknowledge that Schriro only concerned judge/jury issues and did not consider the possible impact of key burden of proof issues on retroactivity.February 17, 2005 at 02:28 PM

Another impressive Sixth Circuit Booker episodeI joked here that the Sixth Circuit's Booker work has a soap-opera quality, but today's installment of the saga at least suggests the judges in the circuit are all starting to work from basically the same script. Today's thoughtful opinion comes from Judge Karen Nelson Moore in US v. McDaniel, 03-1940 (6th Cir. Feb. 17, 2005) (available here), and in the end it remands on Booker grounds for resentencing while suggesting some developing harmony over how the circuit is dealing with plain error.The Sixth Circuit's work in McDaniel, like its work yesterday in Barnett , merits a close read for anyone working through plain error issues. In addition, the McDaniel opinion has a lot of interesting dicta about the handling of pipeline issues, the application of Blakely/Booker to restitution issues, and a number of other matters.UPDATE: Appellate Law & Practice picks up the soap opera theme with a great post entitled As the Sixth Circuit Booker World Turns . This post includes additional commentary on McDaniel as well as a brief discussion of the Sixth Circuit's unpublished disposition in US v. Fusse, No. 02-6112 (6th Cir, Feb. 17, 2005) (available here), which itself briefly deals with plain error on the way to granting a Booker remand.February 17, 2005 at 10:12 AM

Departures, variances and defense advocacyIn emphasizing how important it is for district judges to fully explain and document their post-Booker sentencing decisions, as discussed here, many Commissioners and witnesses

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at the USSC hearings (basics here) expressed the view that judges at sentencing must now (1) calculate an applicable guideline range, and then (2) make traditional departure determinations under the guidelines, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on the 3553(a) factors. I think district judges should carefully follow this protocol not only because it is suggested by Booker (and mandated by the Second Circuit in Crosby), but also because only if judges follow this protocol will we get a precise and complete understanding of Booker's impact on federal sentencing practices. Moreover, this methodology also should help keep some teeth in 5K1.1 substantial assistance departures (which, as noted here, is a big concern for the Justice Department).And yet, I suspect it is going to be dangerously easy for courts and counsel to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. I fear particularly in cases of "discouraged" considerations such as prior good works or family circumstances, judges and counsel will not be inclined to go through the hard doctrinal work of deciding whether a case is sufficiently exceptional to justify a departure and will principally focus on variance arguments based on the 3553(a) factors.For defense counsel, I think there will be significant strategic issues in decided whether and how to develop departure and variance arguments. Though it might seem sensible to always first pitch for a departure, and then seek a variance as a fall-back position, counsel might risk losing credibility or placing emphasis on less helpful factors by putting greater focus on a departure claim than a variance claim. Also, it will be interesting to see, in the development of reasonableness review, whether departures get as much (or possibly more) appellate scrutiny as variances.While defense counsel contemplate these matters in particular cases, they can can and should draw on collected wisdom of two decades of mitigating claims developed in the guideline system. Helpfully, attorney Michael Levine has long been assembling this wisdom in a regularly updated mega-resource that, pre-Booker, had been entitled "88 Easy Departures." Michael was kind enough to send my way his post-Booker update of this document which is now, tellingly, entitled "108 Easy Mitigating Factors." This documents, which can be downloaded below, provides advise to defense counsel and effectively marshalls in a topic fashion "cases granting, affirming, or suggesting mitigating factors." Download levine_108_easy_mitigating_factors_feb_1.doc February 17, 2005 at 02:50 AM

Booker developments in the Second CircuitThe Second Circuit Blog here is reporting that both the SDNY and EDNY US Attorney's Offices "are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker [except] apparently [in] cases involving plea agreements with appellate waivers." According to the post, the "Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant."

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This is interesting news in light of some dicta in a Second Circuit Booker ruling today in US v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005) (available here). The holding of Sharpley is relatively straightforward, as it concludes that "because Sharpley was sentenced at the statutory mandatory minimum and the government has not requested resentencing, this is the rare case where use of a mandatory Guidelines scheme is harmless error even under" Booker and Crosby. And the court in passing ducked the appeal waiver issue stating "we need not decide whether Sharpley's waiver of his appeal rights, or such waivers generally, preclude any consideration of sentencing issues arising under Blakely or Booker." The Sharpley decision also has some very interesting dicta on an issue previously spotlighted here on the blog. As explained here, there is an argument that Booker's failure to discuss 18 U.S.C. § 3553(b)(2) might mean that the guidelines are still mandatory for child crimes and sexual offenses. (Interestingly, Daniel Collins in his testimony at the USSC hearing today seemed to endorse this claim.) Sharpley drops a footnote addressing this issue:

Booker excises 18 U.S.C. § 3553(b)(1) from the Sentencing Reform Act, which makes the Guidelines generally binding on courts, but does not excise 18 U.S.C. § 3553(b)(2), which makes the Guidelines binding in sentencing for convictions for certain child crimes and sexual offenses.... [But] we see no unique feature of Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines sentences for other crimes. For this reason, we suspect that the Supreme Court’s failure to excise the entirety of Section 3553(b) was simply an oversight. Nonetheless, because any error in using a mandatory Guidelines scheme was harmless here, we reserve this issue for a case where it is necessary for decision and the parties have had a full opportunity to develop arguments on both sides.

February 17, 2005 at 01:11 AM

February 16, 2005

Topical highlights from Day 2 of the USSC hearingsRather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings. Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data. But a number of Commissioners astutely asked about how the data ought to be parsed. Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.

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2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons). This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead. Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review. Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.3. The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry. More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.February 16, 2005 at 11:59 PM

In today's great episode of how the Sixth Circuit turns...If Court TV ever decides to create a legal soap opera, the plain error developments in the Sixth Circuit as it sorts through Booker cases would make a great story line. As in a great soap opera, we get a new episode with a new twist each day; today's installment comes in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (available here). Joyfully, this episode of the soap opera is a legal treat to watch, unlike a few prior episodes which made me cringe a bit. (Readers not fully engaged by the following long account of Barnett are still encouraged to ruminate in the comments about which actors ought to play which justices and judges in a Booker-inspired soap opera.) Barnett is wonderful for many reasons, most notably because, in a split 2-1 vote, the Sixth Circuit carefully explains its remand for resentencing due to Booker even through the court holds, based on the prior conviction exception, "that there was no Sixth Amendment violation in the present case." Writing for the majority, Judge Martin explains that, because "Barnett did not challenge his sentence on [the ground that the guidelines were mandatory] or any other ground before the district court[,] we review the district court's decision for plain error." Moving swiftly to the third (prejudice) prong of plain error, Judge Martin thoughtfully explains why this "is an appropriate case in which to presume prejudice under the Supreme Court's decision in Olano:"

Instead of speculating as to the district court's intentions in the pre-Booker world, and trying to apply those intentions to predict the same court's sentence under the post-Booker scheme, we are convinced that the most prudent course of action in this case is to presume prejudice given the distinct possibility that the district court would have imposed a lower sentence under the new post-Booker framework and the onerous burden he would face in attempting to establish that the sentencing court would have imposed such a sentence.

This is not to discount the possibility, however, that in other cases the evidence in the record will be sufficient to rebut the presumption of prejudice.

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In this thoughtful discussion and also in finding the fourth prejudice prong satisfied, the Barnett court draws significantly from the Fourth Circuit's work in Hughes and the Second Circuit's work in Crosby. The court also concludes by noting that, "because we have concluded that the district court committed plain error in this case, that error cannot constitute 'harmless error.'" Judge Gwin, an Ohio district judge sitting by designation, concurs to thoughtfully explain why he believes that, in addition "to the majority's reasons offered for remand, two additional considerations warrant remand." His opinion is a great read, and includes an interesting discussion of the appropriateness of remand "in light of one of the underlying purposes of the plain error doctrine: the economy of judicial resources." Among other astute points, Judge Gwin notes that in many plain error precedents "appellate courts declined to remand, because to retry a case would be to expend a great amount of resources [but] where a re-sentencing is at issue, the costs are far less." Drawing on his own experiences, Judge Gwin says "[h]aving presided over hundreds, if not thousands, of sentencings, I believe the time devoted to post-Booker re-sentencing would be small."Chief Judge Boggs is not convinced, and he adds a number of additional rich insights to the discussion. Here is his summary of his dissent on the plain error issue, which emphasizes that the district judge sentenced Barnett to the middle rather than the bottom of the calculated guideline range:

I agree with the court's conclusion that the district court's use of the pre-Booker sentencing rubric was plainly erroneous in light of present law, but I do not believe Barnett has shown the error prejudiced his sentencing. First, as a factual matter, I believe the record indicates the district court felt the sentence was fair and would therefore give the same sentence post-Booker. Second, as a matter of law, I believe the court errs by concluding that we should reverse when the record is silent as to prejudice.

February 16, 2005 at 04:43 PM

The importance of, and another great example of, district court Booker explanationsOne huge theme that developed at the USSC hearings this week (links here) concerned how critically important it is for district judges to fully explain and document their sentencing decisions (and provide this information to the USSC). On this point, Judge Cassell again stressed the always show your work point, and the Commissioners and other witnesses repeatedly emphasized that effective assessment of the post-Booker world would depend heavily on how well district courts document and justify their decisions. (Indeed, some astutely suggested that Congress would be more troubled by reports that judges were flouting their responsibility to carefully consider the guidelines than by any well-reasoned sentencing outcome.)Confirming why it is so valuable to have such explanations is a decision from North Dakota Chief Judge Daniel Hovland in US v. Peach, 2005 WL 352636 (D.N.D., Feb. 15, 2005). In a truly peachy opinion, Chief Judge Hovland provides an up-to-date account of the jurisprudential debates over Booker and even quotes USSC Chair Hinojosa's data report from his House testimony to spotlight that "federal district courts are sentencing pursuant to the Sentencing Guidelines in the overwhelming majority of cases."

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Adopting language from Judge Hinojosa's testimony, Chief Judge Hovland explains why he thinks that the "proper methodology for sentencing in the post-Booker environment is that federal district courts should give the Sentencing Guidelines substantial weight." And then Chief Judge Hovland goes on, in the case at hand, to thoughtfully explain how he has "carefully considered the factors enumerated in 3553(a)" and "considered the nature and circumstances of the offense as well as the history and characteristics of the Defendant." He then imposes a 100-month sentence, which was at the bottom of the applicable guideline range, as punishment for a life-threatening drive-by shooting by a defendant who apparently had a long criminal record. In addition to spotlighting and praising another thoughtful district court Booker decision, I stressed the case's facts because it confirms my hypothesis here that the guidelines will likely be closely followed for violent crimes committed by repeat offender and variances are likely to arise mostly in non-violent crimes committed by first offenders. This instict led me to stress in my USSC testimony the importance of having post-Booker analyses especially attentive to the distinction between first-time, non-violent offenders and repeat, violent offenders.February 16, 2005 at 04:11 PM

USSC hearings continue...Another big day at the US Sentencing Commission, with 11 witnesses with a variety of guideline experiences and perspectives scheduled to testify. A lot of today's witnesses' testimony is already linked to this agenda, and I hope to report on highlights later today. Coverage of yesterday's hearings can be found here and here.UPDATE: And after a loooooong morning, the USSC hearings finished up this afternoon with a lot of important ground covered and key issues spotlighted. I will have a series of coming posts about the substantive issues, but I can start the post-mortem by highlighting two evolutions in the developing post-Booker nomenclature: (1) Judge Cassell's term "variance" to describe non-guideline and non-departure sentences seems to be gaining adherents, and (2) the Bowman fix may become known as the Collins fix now that Professor Bowman has officially abandon the idea, but former Associate Deputy AG Daniel Collins continues to promote it.February 16, 2005 at 08:59 AM

Pondering a victim's role in sentencingOne quite intriguing issue that came up twice during today's US Sentencing Commission hearing (highlights here) concerned the role of crime victims at sentencing. Both Judge Cassell and victim advocate Collene (Thompson) Campbell discussed briefly victim participation in the federal sentencing process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771). The tail end of Judge Cassell's testimony talks through these victim rights issues in some depth (and includes the text of the new statute). And the Q & A at the USSC hearing today spotlighted some of the intriguing issues raised by having to give victims a defined

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role in sentencing (e.g., should victims have a right to see (and contest findings within) a presentence report?). The particulars of working victims into the sentencing process will present various challenges, but my first question is who exactly qualifies as a victim under the new federal law. The new statute states: "For the purposes of this chapter, the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense." In the context of some offenses, the victims as so defined will be obvious; but often there could be tough legal questions about who could claim to be "directly and proximately harmed" by various federal offenses. Are there any "victims" in drug cases, in firearm possession cases, in immigration cases? Are there hundreds of thousands of victims in large corporate frauds that impact financial markets? (Notably, the statute has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" the new statutory rights, "the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.")Moreover, because the statute gives victims a right to be "reasonably heard" at a plea proceedings, it would seem that "victim" status has to be determined based on offenses charged and not just offenses that are the basis of a conviction. But that in turn leads me to wonder exactly when victims' rights vest (I would think at the time of the offense rather than the time of indictment), and also whether such rights might at some point devest (perhaps upon the dropping of a charge or an acquittal).In sum, though granting victims rights in the criminal justice system sounds good in theory, I suspect it will prove quite challenging in practice. Notably, the new Crime Victims Act gives the Attorney General a year to promulgate regulations to enforce these rights, and I am now very interested to see what those regs will say. I would bet some of these issues have been addresses in some states that may have similar legislation, but federal laws and crimes are likely to present its own unique issues.February 16, 2005 at 01:01 AM

Another Booker ruling from the Sixth CircuitContinuing to set the Booker pace (and continuing to make my head spin), the Sixth Circuit gave us another take on Booker review with its decision Tuesday in US v. Murdock, No. 03-1811 (6th Cir. Feb. 15, 2005) (available here). The main Booker part of the opinion reaches the conclusion that Murdock's sentencing enhancement was not Blakely problematic because it involved a legal conclusion based on facts admitted by the defendant through his plea. Then the court explains:

We note that "[t]here may be some federal criminal defendants whose cases were on direct review at the time the Supreme Court issued Booker who are entitled to remand even though their sentences are consistent with the Sixth Amendment." United States v. Milan, No. 02- 6245/6302 (6th Cir. Feb. 10, 2005), slip op. at 8. This opinion should not be read to foreclose a defendant’s argument, in the appropriate case, that this Court should vacate and remand his sentence on the ground that the district court regarded the Sentencing Guidelines as mandatory at the time of his

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sentencing. However, Murdock has made no such argument in this case, and we decline to do so on his behalf.

I read this passage to hold that Murdock essentially forfeited a claim based on what I have called here the "statutory error" which arose from the pre-Booker (and now improper) mandatory application of the guidelines in his case. However, as I reader Booker, the Sixth Circuit after this finding still had an obligation to review Murdock's sentence under the new 3553(a)-defined reasonableness, which it did not do.February 16, 2005 at 12:05 AM

February 15, 2005

Interesting midwestern Blakely perspectivesThis week has brought interesting new perspectives on Blakely and Booker from intermediate appellate courts in Indiana and Ohio. From Indiana we get Abney v. State, No. 25A05-0407-CR-394 (Ind. App. Feb. 15, 2005) (available here), which is not all that exceptional in its basic holding: the court mostly reiterates prior state rulings that Indiana's presumptive sentencing system is subject to Blakely, but then is able to affirm a sentence because the trial court had relied on some Blakely-compliant aggravating sentencing factors. But the case is noteworthy because, as spotlighted by the Indiana Law Blog here, a concurring judge argues that Booker's gloss on Blakely indicates that Indiana's sentencing laws are not in fact Blakely problematic. From Ohio, where earlier this month as noted here the First District appellate court concluded that Booker's gloss on Blakely did make Ohio's sentencing system problematic, we get another appellate panel (like the one noted here) providing an extended and thoughtful constitutional defense of Ohio's sentencing system. In State v. Trubee, 2005-Ohio-552 (3d App. Dist. Feb. 14, 2005) (available here), the court draws on Justice O'Connor's Apprendi dissent to contend that a "close examination of the Supreme Court's rulings demonstrates that the Court has implicitly found that the structure of Ohio's sentencing scheme does not violate a defendant’s constitutional rights." Notably, to perhaps ensure rapid resolution of these matters by the state supreme court, the Trubee court decided to "sua sponte certify this decision pursuant to App.R. 25 to the Ohio Supreme Court for conflict with the recent decision of the First District Court of Appeals."February 15, 2005 at 11:28 PM

There they go again...Thanks to Appellate Law & Practice, I see that the circuits are back in Booker action, and later tonight I hope to discuss a few federal and state Booker/Blakely cases that hit my virtual desk today.

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But catching my eye first is the amusingly opaque unpublished Booker disposition coming from the First Circuit today in US v. Brichetto, No. 04-1820, (1st Cir. Feb. 15, 2005)(available here). In this case, the First Circuit makes its first mention of Booker with this lone comment while affirming a conviction: "Brichetto has appropriately waived the Booker claim of sentencing error he originally pursued on appeal." I am inclined to assume this means the defendant withdrew his claim (perhaps for fear of getting a tougher sentence on remand), but the use of the term "waived" has piqued my curiosity about whether "appropriately" is the same as "voluntarily" in this case.February 15, 2005 at 07:58 PM

A few highlights from Day 1 of the USSC hearingsThe US Sentencing Commission did itself proud through its first day of Booker hearings: it invited a diverse set of witnesses who addressed a diverse array of important post-Booker topics and shared advice that should help the USSC in its challenging post-Booker work. The richness of the testimony and the Q & A cannot be fully captured in this space, but below I spotlight a few substantive and rhetorical highlights drawn from the written testimony of today's witnesses (most of which is linked here at the USSC's website). Later tonight, I hope to have the time and energy to do a few posts with commentary concerning today's festivities.Chief US District Judge Thomas Hogan (DC): "[T]he US Judicial Conference has not yet taken an official position on sentencing in the wake of the Booker decision.... [T]he Judicial Conference's Criminal Law Committee has taken the lead and is now hard at work developing policy recommendations for the Conference's consideration [which likely] will be considered at the March 15, 2005 meeting of the Judicial Conference."Chief US District Judge Lawrence Piersol (SD): "I believe that Booker provides a nearly perfect sentencing system.... I urge the Commission to take the position that the 'Bowman fix' is no fix at all — it is somewhere between a flat tire and a blowout.... The Bowman 'fix' would at the least be declared unconstitutional in some Circuits so we would have a year or two where federal sentencing law would be in an upheaval while that issue was being initially resolved."US District Judge Paul Cassell (Utah): "[T]he Commission invited me to suggest changes to the Guidelines and other bodies of law that might be appropriate in the wake of Booker. I would like to respectfully offer seven tentative suggestions.... The common theme to these suggestions is that they would all encourage judge to say more closely attuned to the Guidelines."US District Judge Lynn Adelman (ED Wisc): "Booker does two things that will lead to a more just system: (1) it restores federal judges to a meaningful role in the sentencing process; and (2) it makes clear that fairness in sentencing requires consideration of factors other than reducing sentencing disparities."US District Judge Richard Kopf (Neb): "[J]udges obviously know more about the individuals we sentence than many other people [but] the significance of this truism to the statutory goals of sentencing is often zilch.... [T]he importance of 'knowing the person' is overstated by those who want excuses to do something different than what the

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Guidelines dictate.... Congress and the Commission should go slow and see what happens. If most district judges exercise the restraint that I predict they will, and circuit judges use Guidelines-sensitive standards for the defiant, Booker will turn out to be, in the words of one famous federal prisoner, 'a good thing.'"Mary Price (FAMM): "The Blakely and Booker opinions launched what you recently described as a national conversation about sentencing. Your voice must figure prominently in that discussion. This is not a time to tinker around the edges of reform or rush to adopt measures designed to just meet, or worse, avoid, constitutional requirements.... We ask you to think big and reach back to foundation principles of justice."Collene (Thompson) Campbell (MOVE): "We must make certain that fair and reasonable, but realistic and tough, sentencing guidelines are in place and followed. We must be positive that our standards are not weak, or give into those with a propensity for violence.... This Commission must build into its sentencing policies and procedures a requirement that Judges are obligated to give the victim a right to be heard and must take into consideration and understand the impact of the crime, along with the views of the victim, prior to making any sentencing decisions."Paul Rosenzweig (Heritage): "Booker will not endure [because] the pushme-pullyou solution in Booker can long withstand either political or constitutional scrutiny.... There are so many questions that underlie the 'reasonableness' standard that I feel utterly confident in predicting years of litigation, multiple circuit splits, and the frequent necessity for clarifying Supreme Court intervention."February 15, 2005 at 07:38 PM

Curious grants of new trials based on BookerA reader this morning passed along two notable Booker decisions issued earlier this month which have only recently come on-line. In parallel rulings in two fraud cases, US v. Williams, 2005 U.S. Dist. LEXIS 1980 (N.D. Ohio Feb. 4, 2005), and US v Rohira, 2005 U.S. Dist. LEXIS 1981 (N.D. Ohio Feb. 4, 2005), Senior US District Judge Ann Aldrich relies upon Booker to grant defendants a new trial because, to quote from the Williams opinion headings, the "Jury Was Never Expressly Charged with Finding the Amount of Loss beyond a reasonable doubt and Agent's Unreliable Estimate Probably Tainted their Deliberation on That Issue" and "Unreliable Loss Estimate Likely Influenced Jurors' Decision on Guilt or Innocense [sic]" and "Jury's Consideration of Amount of Loss at Trial Is Inextricably Linked to Its Consideration of that Same Issue at Sentencing."Based on a quick read, I fear that these rulings may be reading too much into Booker because of broader concerns the court may have about convictions apparently based on shaky evidence. (In a footnote, the court states: "The prosecution's use of this deeply flawed estimate of a central fact [the amount of fraud loss] may constitute grounds for a new trial independent of Booker and Blakely.") But the decisions still serve as a sober reminder of the concerns and potential confusions raised by Sixth Amendment issues and the Booker court's distinctive and curious resolution of such issues.

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February 15, 2005 at 11:47 AM

An inside-the-Beltway Booker analysisAn on-time flight and a hotel room available early gives me a little blogging time before heading over to this afternoon's US Sentencing Commission hearing. I am pleased to see that the USSC now has a lot of the hearing witnesses' written testimony linked through this agenda page so even folks outside the Beltway can follow the action.I hope to comment at length tonight about what transpires at today's USSC hearings, but first I have other items of interest to share. Perhaps fittingly as I was in transit to DC, another government document about Booker arrived in my in-box: a research report entitled "Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options" authored by the Congressional Research Service of the The Library of Congress. The short report, which can be downloaded below, provides a useful overview of Booker and the policy issues facing Congress. The report is dated February 9, so I assume it was prepared in conjunction with last week's House hearing in Booker (highlights here).Download crs_analysis_of_fsg_and_booker.pdf February 15, 2005 at 11:25 AM

February 14, 2005

Off to DC for a big weekI leave in the early morning Tuesday to head to Washington DC in order to testify in the late afternoon at the US Sentencing Commission hearings. Details on the USSC hearings and some of the written testimony are available here.I will be in DC through Friday because late Thursday I have the honor of participating in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court. (Dahlia Lithwick — who has been described as "the rockingest Supreme Court columnist ever ever ever" — is a co-panelist, and she recently got in the spirit of the event through this interesting American Lawyer piece which explains that "the Web has changed [Supreme] Court reporting quite significantly, and changed the way the Court does business almost not at all.")Though I expect to have hotel internet access, blogging is likely to be a bit light through the week. But, by being a busy Booker beaver, I leave behind many posts on a range of Booker/Blakely issues. Here's an abridged summary with links:BOOKER CIRCUIT COURT RULINGSSorting through the Circuit circus Another important (and opaque) 3d Circuit remand

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More (a lot more) notable circuit Booker work Reports on Booker circuit actionOTHER BOOKER INFO AND COMMENTARY

Thoughts on post-Booker data collection One needed quick fix: a new USSC Commissioner Taking (insightful) stock of the post-Booker world Reports on recent Booker district court sentencings Mark your Booker calenders (list of events has been updated tonight) Celebrating a month of Booker (includes a Word version of a month of post-Booker

blog posts)BOOKER HEARINGS INFO AND COMMENTARY

The next big hearing and some written USSC Hearing testimony More reports on the House hearing House hearing highlights

BLAKELY IN THE STATESThe New Jersey Blakely saga continues The Ohio Blakely saga continues Booker wisdom for the states from the Vera Institute

And, if somehow all these materials do not fulfill all your sentencing law and policy needs, you can head over to this new webpage I have created to assemble sentencing law resources, which now includes a (still-in-development) Booker basics page.February 14, 2005 at 11:59 PM

The next big hearing and some written USSC Hearing testimonyAfter the circuits went wild at the end of last week (some details here, commentary here), today has been, at least according to my in-box, a mercifully quiet day for court decisions. And that quiet has, thankfully, given me needed time to complete my written testimony for the US Sentencing Commission hearing that starts tomorrow afternoon and is formally entitled "entitled "U.S. v. Booker/Fanfan and the Impact on Federal Sentencing." The Commission had provided is Public Hearing Agenda here and some Topics of Discussion here for this exciting next round of Booker hearings. I must say that I am a bit fearful that even I may soon start suffering from Booker overload. Last week's House hearing (highlights here) had only four witnesses and was still a bit overwhelming. (Notably, a full webcast of that hearing is now available here.) The USSC is bringing in twenty (20!) big-time witnesses for its two days of hearings, and I suspect every one of them will have important and interests insights and ideas to share.

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I have the pleasure of sharing Tuesday's final panel, which is to provide "A View from Academia," with Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, and Adjunct Professor, George Mason University School of Law. You can have an opportunity to see how things look from academia by reading my written testimony and Paul's testimony, which I provide for downloading below.Download final_berman_ussc_testimony_215.pdf Download ussc_feb_152004_rosenzweig.PDF UPDATE: I am very pleased to have now received a copy of Judge Paul Cassell's written testimony for the USSC hearing tomorrow. It runs fifty pages (50!), though parts I and II cover the ground of Judge Cassell's Wilson opinions. But Part III makes specific recommendations to the Commission about how to improve the Guidelines after Booker (e.g., encouraging the Commission to reemphasize that "forbidden" factors remain forbidden and to discourage 5K1.1 downward departures for substantial assistance absent a government motion). And Part IV touches on the rights of victims to participate in the federal criminal justice process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act. Interesting stuff.Download judge_cassell_ussc_hearing_testimony.rtf February 14, 2005 at 03:39 PM

Sorting through the Circuit circusThough I can barely find time to read all the circuit court Booker rulings (recently detailed here and here and here and here and here), my growing sense is that the appellate handling of "pipeline case" is a disparate mess. Of couse, given Justice Breyer's opaque closing paragraph in Booker, this comes as no big surprise (I expressed my fear of a remedy mess here hours after Booker came down). But the situation seems to be developing into a (twelve-ring) circus that risks significantly undermining a federal sentencing system which is purportedly committed to administering equal justice.To clarify my own thinking about the rapid-fire circuit dispositions, I have below outlined my own understanding of how Booker should be understood for pipeline cases now on appeal. I would be eager for readers to use the comments to provide feedback on my analysis.The two types of Booker errors: I believe each part of the Booker opinion defines a different type of error. Justice Stevens' opinion explains that there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt. Justice Breyer's opinion explains that, given the Court's finding of constitutional error, there was a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory with heightened attentiveness to the instructions of 3553(a). Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence

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was imposed based on the assumption that the guidelines were mandatory and was imposed without heightened attentiveness to the instructions of 3553(a). Indeed, the cases before SCOTUS define these realities: Booker's sentence included judicial fact-finding so it involved both constitutional error and statutory error; Fanfan's sentence was not based on judicial fact-finding so it involved only statutory error. Both cases were remanded for resentencing.The Booker remedial instructions: In his final paragraph, Justice Breyer explains that "we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review." I think that means that both constitutional and statutory errors must be recognized and remedied in all federal cases not yet final. However, Justice Breyer also suggests that reviewing courts will be able to "apply ordinary prudential doctrines" to ensure that not "every appeal will lead to a new sentencing hearing." And here is how Justice Breyer explains the application of these prudential doctrines:

[Reviewing courts can determine] whether the issue was raised below and whether it fails the "plain-error" test. [And] in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

What I think Booker means for pipeline cases: Putting all these pieces together, I believe circuit courts, in cases with constitutional error, can and should apply plain error analysis if the Sixth Amendment was not raised below. However, even if the plain error standard is not satisfied OR if a sentence did not involve "a Sixth Amendment violation," circuit courts still must, because of statutory error, apply harmless error analysis to determine if resentencing is still warranted AND also must review every sentence for reasonableness even if application of "ordinary prudential doctrines" makes resentencing unnecessary.February 14, 2005 at 10:25 AM

February 13, 2005

Thoughts on post-Booker data collectionIn this post reflecting on last week's House hearings (highlights here), I stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker. But, even as we properly focus on sentencing data post-Booker, we should be mindful of the great Disraeli/Twain quote: "There are three kinds of lies: lies, damned lies and statistics."The challenge for the US Sentencing Commission and others will be not only to collect and analyze post-Booker sentencing data, but also to present this data accurately and effectively. I thought the data report on the 733 cases sentenced on or after January 12 as of February 4 in Judge Hinojosa's testimony to the House Subcomittee last week was

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very well presented, but its accounting of the cases still raised a lot of "coding" questions in my mind. Moreover, I fear a lot of coming data confusion in part because we do not even have a settled nomenclature for new-fangled post-Booker sentences that are neither within the guidelines nor represent "old-world" departures: the Second Circuit in Crosby suggested the term "non-Guidelines sentence"; Judge Cassell has coined the term "variance"; the defense bar is partial to "statutory sentence".On this subject, I see White Collar Crime Prof Blog has this interesting post on related data issues which reports on Judge Nancy Gertner's proposal for developing a "sentencing information system" which seeks to move away from "act of departure" reporting to a "why departing" reporting system. My casebook co-author Marc Miller should be credited for promoting sentencing information systems in this recent article, which notes their use in Scotland and New South Wales. Whether and how data could be collected and assembled to create an effective sentencing information system for federal sentencing is one of the many interesting post-Booker issues to watch.February 13, 2005 at 09:30 PM

One needed quick fix: a new USSC CommissionerThough the move of US Sentencing Commissioner Michael O'Neill from the USSC to the Hill to become Counsel for the US Senate's Judiciary Committee is old news (I first reported it here), it is interesting to see that the USSC has just posted on its website O'Neill's official resignation letter. It is also still fun to speculate on the role O'Neill may be playing in his new job as the Senate contemplates hearings and a possible legislative response to Booker. (I am inclined to believe that O'Neill had a hand in encouraging Judiciary Committee Chair Arlen Specter to take the "let Booker percolate a while" approach reflected in comments reported here.)Meanwhile, since O'Neill's departure means the USSC will be one Commissioner short at a crucial time, this development does present an opportunity for one important quick fix in the wake of Booker. The President ought to expeditiously name, and the Senate ought to expeditiously confirm, a replacement for O'Neill so that the USSC can be working again at full force ASAP.February 13, 2005 at 08:41 PM

The New Jersey Blakely saga continuesAs I have detailed in posts here and here and elsewhere, the story of Blakely in New Jersey (aka the state which gave us Apprendi) is quite engaging and dynamic. Responding to the state's lament that "uncertainty regarding the effect, if any, of the Blakely opinion on [New Jersey's] ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors," the New Jersey Supreme Court recently agreed to review three major Appellate Division Apprendi and/or Blakely rulings on an expedited schedule.

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NJ attorney Steve Sanders — who has been involved in these cases as an amicus for the Association of Criminal Defense Lawyers of New Jersey — has been kind enough to pass along some of the briefs in these cases. For the interested reader, I have provided these briefs for downloading below. Among the notable aspects of the briefs is that the defendants say that Booker shows that Blakely is applicable to NJ's sentencing laws, while the State argues that Booker reinforces its argument that NJ's scheme is perfectly constitutional.Download nj_state_brief_in_natale.pdfDownload nj_acdl_natale_supp. Brief.pdf Download nj_abdullah.spplmtl.brf1.pdfFebruary 13, 2005 at 08:24 PM

The Ohio Blakely saga continuesI have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here). To its great credit, as detailed in memos linked here, Ohio Criminal Sentencing Commission has been tracking Blakely developments closely, and it has been regularly updating this memo with the latest Ohio appellate court decision on Blakely. (Relatedly, the Ohio Criminal Sentencing Commission has also recently produced this report entitled Monitoring Sentencing Reform which asserts that Ohio has generally achieved its stated goals with the sentencing reform it enacted a decade ago.)As reported here a last week, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio. The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong."But this week, in Ohio v. Abdul-Mumin, 2005-Ohio-522, 2005 WL 315062 (Ohio App. 10 Dist. Feb. 10, 2005) (available here), Ohio's Tenth Appellate District explained in the most thorough decision I have seen why it believes Ohio's sentencing scheme does not have Blakely problems. Here's the heart of the Court's concluding analysis:

By enacting [Ohio's sentencing presumptions], the Ohio General Assembly did not change the definition of any existing offense. It simply conferred favored status upon minimum sentences for first-time imprisonment, and provided directives to guide the use of factors that have always been considered by sentencing courts to bear upon the appropriateness of a particular punishment, i.e., "the seriousness of the offender's conduct" and the need to "adequately protect the public from future crime by the offender or others."... [T]he factors involved in the imposition of appellant's non-minimum sentences did not enlarge appellant's penalty for any offense beyond the maximum authorized by the jury's verdict. As

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such, their use was not violative of appellant's Sixth Amendment right to a trial by jury.

Though the Abdul-Mumin court makes a quite spirited defense of Ohio's sentencing laws in the face of Blakely, I know that not everyone will be convinced of its analysis. Specifically, I had a student last semester who examined Blakely in Ohio and concluded that Blakely must be applicable to Ohio's sentencing laws. That student recently completed a polished write-up of his conclusions and he has allowed me to share his perspective on Ohio's Blakely problems here:Download sabol_analysis_of_blakely_and_booker_in_ohio.docFebruary 13, 2005 at 07:49 PM

Taking (insightful) stock of the post-Booker worldThough I already celebrated a month of Booker in this post here, a collection of terrific items in the papers and around the blogsphere this morning allows us all to take stock of our sentencing world a month after Booker.First, this article in the Baltimore Sun provides a terrific overview of post-Booker developments in federal sentencing. Similarly, the White Collar Crime Prof Blog has a great post here surveying and assessing the post-Booker landscape, as well as another fine post here spotlighting that DOJ is still able to brag in press releases about tough sentences imposed on white-collar offenders.Second, in this terrific op-ed in the Washington Post, Andrew Goldstein provides a fantastic account of the importance of transparency in sentencing decision-making. Though particularly stressing why, post-Booker, "it is crucial for judges to openly explain their sentences," the piece does a wonderful job of highlighting more broadly why every actor and institution involved in the development of sentencing law and policy ought to publicly explains its decisions.Third, as a reminder of broader issues in a post-Booker world (which, as noted here, I realize do exist), the Los Angeles Times has this terrific article about the ways Governor Arnold Schwarzenegger is embracing and promoting rehabilitation-oriented policies and programs in California. TalkLeft here has a nice summary account of the article. Notably, while the article suggests Arnold is "veering sharply from the law-and-order mantra of his Republican Party," I think this work by The Terminator (or should we call him now The Rehabilitator) is just another example of the new criminal justice right I have identified and that Grits for Breakfast has noted in Texas.February 13, 2005 at 10:04 AM

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Another important (and opaque) 3d Circuit remandA reader pointed out that I missed an important (published) remand from the Third Circuit in my review of all the late week Booker action from the circuits (detailed here and here and here and here). As in its unpublished Mortimer ruling, the Third Circuit's Booker disposition in US v. Davis, No. 02-4521 (3d Cir. Feb. 11, 2005) (available here), does not provide much factual background or legal analysis. Yet, the one paragraph Booker discussion in Davis hints that the Third Circuit might be employing the broadest remand standard of any circuit. Here is the entire Booker discussion appearing on the last page of the Davis opinion:

Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.

Reading Mortimer and Davis together, I am inclined to think that the Third Circuit has decided to remand every Booker claim without even bothering with plain error review. (The Third Circuit Blog comes to this same basic view here based on just the Mortimer ruling.) Of course, if it is the Third Circuit's plan to remand every case, it ought to make that clear.As I hope to explain in a later post, I think a circuit plan to remand all sentencing cases still on direct review that were imposed under mandatory guidelines might be the most just and efficient way to deal with the Blakely/Booker pipeline cases. In other words, I believe it would be most prudent for the circuits to generally forgo using prudential doctrines to affirm sentences imposed under the old mandatory guidelines system.February 13, 2005 at 08:59 AM

February 12, 2005

Celebrating a month of BookerToday marks one month since Booker was handed down, and a quick Westlaw search brings up 132 on-line federal decisions (and 46 state decisions) mentioning Booker. Of course, that's only the visible tip of the Booker iceberg, since Judge Hinojosa's testimony to the House on Thursday reported on 733 cases sentenced on or after January 12 as of February 4. And that number is also "light" since pre-Blakely/Booker data suggest that the federal sentencing system was imposing over 5000 sentences each month. (I continue to wonder how much Blakely and Booker could depress the overall number of cases brought in the federal system.)To celebrate a month of Booker, my terrific research assistant create yet another printer-friendly Word document version with imbedded links and a TOC of all the text of this blog since Booker was handed down. You can download all 142 pages below.Download slp_blog_jan_12_to_feb_11.doc

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And if anyone is nostalgic for those halcyon days before Booker consumed this blog, my RA also created a document, available below, with all the posts from the start of the year through the day before Booker arrived.Download slp_blog_jan_1_through_jan_11.doc February 12, 2005 at 04:56 PM

In other important sentencing newsAs is obvious to all readers, the Booker story and the past, present and future of federal sentencing has now fully consumed me and this blog. And, as suggested by this calender, these hearings, and all the circuit court and district court action, the Booker story seems unlikely to calm down anytime soon.But, critically, there is a lot more to sentencing law and policy than just Booker. Of course, there is the on-going Blakely in the states story, about which I hope to post some news later this weekend. Moreover, there are so many issues of concern that have nothing to do with Blakely or Booker.Fortunately, others do a great job covering important sentencing issues while Booker-mania rages on. For example, TalkLeft has a great post on drug sentencing issues entitled Drug Courts: Yes. Mandatory Minimums: No. And the Death Penalty Information Center always has highlights from important capital sentencing developments here.And, meriting a special shout-out, Grits for Breakfast continues to do a masterful job covering law and policy developments surrounding Texas's on-going struggle with its prison overcrowding problems, as detailed in amazing posts here and here and here. I am particularly fond of the conclusion that the developments in Texas provide "more evidence of Berman's observation here that a 'new right' may be developing on criminal justice reform."February 12, 2005 at 12:25 PM

Reports on recent Booker district court sentencingsAs evidenced by all the action detailed here and here and here and here, the federal circuit courts are taking over the Booker headlines as they try to sort through all the "pipeline cases." But, in the end, the mess of all these pipeline cases (which I will comment on later this weekend) are just short-term transition realities of the Booker shift. Of greater long-term importance is how Booker gets applied in the district courts.I have stressed here (and will stress to the Sentencing Commission next week) the importance of focusing upon data rather than anecdote when assessing how Booker is really being applied in the district courts. But, because I do not have access to such data, I have to report here only the interesting anecdotes I find in the papers. So, with that caveat, here come notable post-Booker district court sentencing anecdotes (most of which do not actually discuss Booker):

This article from Peoria, Illinois reports on US District Judge Joe McDade's decision to impose a 10-year sentence in a crack case, which was below the guidelines range for

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crack but seemed, according to the story, to bring the sentence more in line with powder cocaine sentencing levels. The article suggests Judge McDade may have, as I suggested here, concluded in the crack/powder context that sentencing uniformity may be better achieved by not following the guidelines (and, if it plays in Peoria). The article also has this notable quote from the Judge McDade:

Given the Draconian punishment associated with crack cocaine, to follow the guideline range for this case would go beyond what is needed to serve the purpose of sentencing," McDade said. "Respect for the law doesn't always mean sending people to prison for as long as you can."

This story from California reports on a defendant sentenced to 51 months for theft and possession of explosives, which was, according to the article, "the maximum allowed within federal sentencing guidelines."

This story from Texas reports on a felon getting additional federal time on top of a state sentence on a gun charge, and it appears from the facts that federal prosecutors may have been able in this case to use new Booker discretion to their advantage.

This story from Philadelphia reports on a long probation sentence imposed on a plumber involved in paying kick-backs to a corrupt city clerk, which was in line with the federal prosecutor's recommended sentence.

This story from Orlando reports on a federal re-sentencing (prompted by non-Booker issues) that involved a long sentence imposed, and then reimposed, on a non-violent, first offender in a high-profile case involving the theft of moon rocks. (You just can't make this stuff up, can you?)

February 12, 2005 at 12:01 PM

More (a lot more) notable circuit Booker workIt now seems you cannot even take a Friday night off without missing a lot of Booker action from the circuit courts. In addition to the four circuit dispositions noted yesterday here and here and here, I now can report on six more noteworthy Booker rulings coming from the Second, Fourth, Eighth, Ninth and Tenth Circuits. Here I will provide just a quick summary of the rulings, with links, and later today I hope to comment more broadly on all the circuit action.From the Second Circuit, US v. Konstantakakos, 2005 U.S. App. LEXIS 2250 (2d Cir. Feb. 11, 2005) (available here), the court simply remands one defendant's case in accord with Crosby, but then it affirms the sentence of another defendant who did not raise a Sixth Amendment claim. This case thus leads me to wonder about the appropriateness of affirming sentences imposed under (now inoperative) mandatory guidelines even when the defendant is appealing on grounds others than the Sixth Amendment.From the Fourth Circuit, in US v. Washington, 2005 WL 326986 (4th Cir. Feb. 11, 2005) (available here), the court follows the circuit's prior work in Hughes to find plain error based on an obstruction of justice enhancement. Notably, the Washington court does not address the on-going inter-circuit split over application of the plain error standard

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(and the facts of Washington suggest the 2d Circuit's approach in Crosby and the 11th Circuit's approach in Rodriguez might have led to a different result). Also, the Washington court asserts that, even though the Sixth Amendment claims was not raised in the defendant's opening brief and such claims "are normally deemed to have been waived, the Booker principles apply in this proceeding because the Court specifically mandated that we 'must apply [Booker] . . . to all cases on direct review.'"From the Eighth Circuit, in US v. Nolan, 2005 WL 323696 (8th Cir. Feb 11, 2005) (available here), the Court in a footnote rejects a Blakely/Booker claims and upholds judicial fact-finding concerning the nature of the defendant's prior convictions in an application of the Armed Career Criminal Act. Based on the Harris limit and Almendarez-Torres exception to Blakely/Booker, this ruling seems sound, but the case highlights the impact and import of these seemingly shaky precedents.From the Ninth Circuit, in US v. Ruiz-Alonso, 2005 WL 326839 (9th Cir. Feb. 11, 2005) (available here), the court in a final paragraph ordering a Booker remand uses language which could suggest a remand standard even broader than the Ninth Circuit's discussion in Ameline. In Ruiz-Alonso, the government was appealing a downward departure, and the Ninth Circuit concluded: "Because we cannot say that the district judge would have imposed the same sentence in the absence of mandatory Guidelines and de novo review of downward departures, we vacate the sentence and remand for resentencing in a manner consistent with Booker."From the Tenth Circuit, we get two notable Booker opinions, and, interestingly, the one to be published is the shorter seemingly less consequential one, US v. Lynch, 2005 WL 327710 (10th Cir. Feb. 11, 2005) (available here). In Lynch, the district court had "Blakely-ized" at sentencing, considering only the defendant's admitted drug quantities, and the government appealed. These facts brought the case directly in line with Fanfan, and the 10th Circuit followed the Supreme Court's lead by simply ordering resentencing under the new Booker rules.More interesting, but left unpublished, is US v Garcia-Castillo, 2005 WL 327698 (10th Cir. Feb 11, 2005) (available here), which concerns Blakely's applicability to a restitution order. Though the Garcia-Castillo court ultimately rules that, for "any one of three independent reasons, we reject Garcia-Castillo’s Blakely/Booker argument," along the way the 10th Circuit covers a lot of important (and disputed) ground concerning the scope of Blakely, the nature of Blakely admissions, and the application of plain error.WHEW! I am sure I have missed some nuances in these cases, and readers are highly encouraged to use the comments to amplify any and all important issues raised by these cases.February 12, 2005 at 10:45 AM

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