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Sentencing Law and Policy

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    Sentencing Law and Policy Sentencing Law and Policy A Member of the Law Professor Blogs Network Blog Owner a.. Douglas A. Berman b.. Professor of Law c..
    Message 1 of 1 , Jun 7, 2005
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      Sentencing Law and Policy

      Sentencing Law and Policy
      A Member of the Law Professor Blogs Network
      Blog Owner
      a.. Douglas A. Berman
      b.. Professor of Law
      c.. Moritz College of Law at The Ohio State University
      d.. Email Me
      e.. Web Profile
      f.. Recent Scholarship
      g.. C.V.
      i.. Support provided by the Moritz College of Law Center for Law, Policy and Social Science

      My Books & Journals
      b.. Sentencing Law & Policy (Aspen Publishers, 2004)
      d.. 2005 Interim Supplement: The Blakely/Booker Revolution, Sentencing Law & Policy (Aspen Publishers, 2005)
      f.. Federal Sentencing Reporter
      h.. Ohio State Journal of Criminal Law
      Topical Archive
      a.. Advisory Sentencing Guidelines
      b.. Almendarez-Torres and the prior conviction exception
      c.. Applicability of Blakely to FSG
      d.. Apprendi / Blakely Retroactivity
      e.. Blakely Commentary and News
      f.. Blakely in Appellate Courts
      g.. Blakely in Legislatures
      h.. Blakely in Sentencing Courts
      i.. Blakely in the States
      j.. Blakely in the Supreme Court
      k.. Booker and Fanfan Commentary
      l.. Booker in district courts
      m.. Booker in the Circuits
      n.. Clemency and Pardons
      o.. Criminal Sentences Alternatives
      p.. Death Penalty Reforms
      q.. Drug Offense Sentencing
      r.. Federal Sentencing Guidelines
      s.. Legislative Reactions to Booker and Blakely
      t.. Offender Characteristics
      u.. Offense Characteristics
      v.. Procedure and Proof at Sentencing
      w.. Purposes of Punishment and Sentencing
      x.. Race, Class, and Gender
      y.. Scope of Imprisonment
      z.. Sentences Reconsidered
      aa.. Severability of FSG
      ab.. Sex Offender Sentencing
      ac.. State Sentencing Guidelines
      ad.. Who Sentences?
      ae.. The Archives
      Recent Posts
      a.. Judge Presnell on fast-track disparity
      b.. The Constitution Project releases principles for sentencing reform
      c.. A view that Ameline is not so sublime
      d.. 5th Circuit discusses Booker resentencings
      e.. A quick sentencing perspective on a possible new Justice
      f.. The latest news on Blakely in Tennessee
      g.. Raich commentary galore
      h.. Rehnquist's capital legacy
      i.. 8th Circuit is at it again
      j.. A result in Raich and, of course, Booker GVRs
      Weekly Archive
      a.. June 6, 2005 - June 12, 2005
      b.. May 30, 2005 - June 5, 2005
      c.. May 23, 2005 - May 29, 2005
      d.. May 16, 2005 - May 22, 2005
      e.. May 9, 2005 - May 15, 2005
      f.. May 2, 2005 - May 8, 2005
      g.. April 25, 2005 - May 1, 2005
      h.. April 18, 2005 - April 24, 2005
      i.. April 11, 2005 - April 17, 2005
      j.. April 4, 2005 - April 10, 2005
      k.. The Archives
      June 7, 2005
      Judge Presnell on fast-track disparity
      With all the recent discussions of appellate decisions (Booker and otherwise), I have been hankering for some notable district court decisions, since the real Booker action takes place on a daily basis in the district courts. Today, the always notable Judge Gregory Presnell, who has already secured a place in my Sentencing Hall of Fame, was kind enough to scratch my district court itch through his decision in US v. Delgado, No. 05-cr-30 (M.D. Fla. June 7, 2005).

      Delgado is a brief decision (which can be downloaded below) that first addresses a guideline calculation issue that Judge Presnell calls "the type of mechanistic application of arbitrary sentencing Guidelines which leads to inequitable and patently unreasonable results." But the most far-reaching aspect of Delgado, and the feature that will lead to a certain appeal to the Eleventh Circuit under DOJ's post-Booker appellate plans, is Judge Presnell's decision to address fast-track disparity:

      Unfortunately (for Delgado), this district has no fast track program. If he had been arrested in Arizona, he would be eligible for a 4-level reduction. But, having made it to Florida to find work, he is subject to a much harsher sentence. Recognizing this disparity, two of my fellow judges have granted 4-level departures on this basis. United States v. Villalobos, 6:04-CR-206- Orl-28JGG (M.D. Fla. Apr. 18, 2005)(Antoon, J.) (oral sentencing judgment); United States v. Maldonado-Sanchez, 8:03-CR-371-T-30TGW (M.D. Fla. Jan. 30, 2004) (Moody, J.) (endorsed order). I see no reason to hold otherwise. Accordingly, the Court will exercise its discretion to reduce Delgado's sentence by the equivalent of a 4-level departure in recognition of this sentencing disparity.

      Download presnell_sentencing_opinion_us_v. Delgado.pdf

      June 7, 2005 at 06:43 PM | Permalink | Comments (0) | TrackBack (0)

      The Constitution Project releases principles for sentencing reform
      After nearly a year of post-Blakely work, The Constitution Project and its Sentencing Initiative's bipartisan, blue-ribbon committee has today, as detailed here, "released a set of guiding principles for reform of criminal sentencing systems in the United States." The principles, which run a mericiful two pages and can be accessed at this link, were unveiled at a press conference hosted by the Heritage Foundation and featuring the committee's co-chairs, former Attorney General Edwin Meese III and former Deputy Attorney General Phillip Heymann. Notably, the statement of principles also includes a statement of "several serious deficiencies" in "the federal sentencing guidelines as applied prior to United States v. Booker."

      A separate brief introduction to the principles, which can be accessed here, provides some background on the Sentencing Initiative and also this teaser of productions still in the works:

      The Committee's primary objective was to seek consensus on some of the fundamental elements of a sentencing system that achieves both appropriate punishment and crime control. These "Principles for the Design and Reform of Sentencing Systems" are the first step in the Committee's work. The Committee plans also to release a background report on these principles, to be followed by specific recommendations for a post-Booker federal sentencing scheme.

      The principles all look astute and sound to me, though I would contend that the Sentencing Reform Act that Congress passed in 1984 reflects all these principles. Indeed, I argued at length in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999), that the SRA is an astute and sound piece of legislation, but that federal sentencing went astray because Congress, the US Sentencing Commission and even federal judges did a poor job effectuating the SRA's core principles in their subsequent sentencing work.

      In other words, the federal experience over the last two decades shows that the devil is really in the details. Though a statement of principles, especially from this impressive group, is powerful, I hope that future work from the Sentencing Initiative will provide a lot more specifics and especially address how the modern politics of sentencing (especially in the federal system) can be recast to enhance the chance that this broad principles will be effectuated over time as a sentencing system evolves.

      June 7, 2005 at 05:02 PM | Permalink | Comments (0) | TrackBack (0)

      A view that Ameline is not so sublime
      Though I like the Ninth Circuit's Ameline case as a facilitator of rhyming post titles, Steven Kalar over at the Ninth Circuit Blog is not too keen on the substance of Ameline's approach to Booker plain error (basics here, commentary here). In this post, Steven complains about the Ninth Circuit's decision to adopt "the Second Circuit's economic, expedient, and arguably unconstitutional 'quick look' procedure for Booker pipeline cases."

      In an interesting part of an interesting post, Steven urges defense attorneys to contest "any district court 'quick look' done outside of the presence of the defendant, based on a defendant's structural right to allocution." He notes that "[a]lthough the allocution issue was pressed aggressively at oral argument, the Ninth entirely avoids the issue entirely in its en banc decision." Steven says to look "for upcoming sample briefing and discussion of this challenge in the 9th Circuit blog and the ND Cal FPD web page in the upcoming weeks." (Notably, the ND Cal FPD website already has a number of sample Booker and Shepard memos and briefs, and a lot of other materials, available at this briefbank page.)

      June 7, 2005 at 11:19 AM | Permalink | Comments (0) | TrackBack (0)

      5th Circuit discusses Booker resentencings
      On Monday, the Fifth Circuit had an opportunity in US v. Scroggins, No. 03-30481 (5th Cir. June 6, 2005) (available here) to discuss the nature of resentencings under Booker. Though the case has a complicated history and though the Fifth Circuit's opinion is somewhat opaque, Scroggins is notable for its discussion of a number of important Booker resentencing issues.

      First, Scroggins rejects the defendant's contention that due process/ex post facto principles restrict application of the Booker remedy and thereby requires that resentencings be based only on Blakely-compliant facts. But then Scroggins also rejects the prosecution's contention that certain guideline enhancements that had been affirmed on appeal pre-Booker could not now be reconsidered by the district court. Here are selections from Scroggins's account of what should now transpire at resentencing:

      The district court may, should it deem it appropriate, reconsider its determinations that Scroggins was a leader or organizer and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determination under an advisory, non-mandatory, guidelines system....

      We hold that, under the particular circumstances of this case, the district court may also, in its discretion, hear and consider evidence as to Scroggins's role in the offense under section 3B1.1 of the Guidelines and whether he obstructed justice under section 3C1.1 of the Guidelines. The court may also hear evidence bearing on whether or not — notwithstanding that the Guidelines (and pertinent Sentencing Commission policy statements) must be considered and taken into account — a non-guideline sentence would be more appropriate in light of the other factors and considerations set out in Justice Breyer's Booker opinion.

      June 7, 2005 at 03:37 AM | Permalink | Comments (1) | TrackBack (0)

      A quick sentencing perspective on a possible new Justice
      With fitting fanfare from other bloggers here and here, the fine folks at SCOTUSblog now have gone public with The Supreme Court Nomination Blog. The SCOTUSNom blog aspires "to provide comprehensive, objective coverage of the Supreme Court nomination process." It is already a very impressive effort (and the real action hasn't even started). If (when?) there is a SCOTUS vacancy this summer, the legal blogsphere will likely reach a whole new buzz level, and I expect the SCOTUSNom blog will be at the center of all the action.

      Whenever there is a SCOTUS vacancy, I will provide a sentencing perspective on all the new Justice talk. Indeed, I can start providing that perspective now. Recall that 5-4 votes produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. Both Chief Justice Rehnquist and Justice O'Connor, the two Justices often considered most likely to retire, are key votes supporting these limits on the reach of the Apprendi-Blakely rule. If (when?) President Bush were to nominate replacement Justices in the "Scalia-Thomas" mold, the future of Almendarez-Torres and Harris would seem to be even shakier

      Of course, Justices Scalia and Thomas did split their votes in both Almendarez-Torres and Harris, although Justice Thomas has now essentially recanted Almendarez-Torres vote and Justice Scalia has never explained his vote in Harris. So, even the votes of the current Justices on the big sentencing issues are subject to uncertainty and debate, and I am sure the same will be true for any and every potential nominee. Should be a fun summer for Court fans.

      June 7, 2005 at 03:15 AM | Permalink | Comments (0) | TrackBack (0)

      The latest news on Blakely in Tennessee
      Attorney David Raybin, who has been integrally involved in many Tennessee Blakely developments, sent me tonight the latest news on his state's Blakely drama. The big recent development is that on Tuesday, June 7, Tennessee's Governor is scheduled to sign "Blakely fix" legislation — even though, as detailed here and here, the Tennessee Supreme Court has reached the (seemingly erroneous) conclusion that the state's current sentencing laws are not broken.

      As detailed more fully in David Raybin's report, which can be downloaded below, Tennessee's "Blakely fix" legislation serves to "Booker-ize" the state's sentencing scheme. That is, the legislation converts Tennessee's mandatory sentencing regulations into advisory guidelines that state judges must now consider, but are no longer required to follow. I believe Tennessee is the only state to date to adopt legislatively a Booker advisory guidelines approach to deal with Blakely issues, although other states like Alaska and Minnesota have in smaller ways provided judges with more sentencing discretion through Blakely fix legislation. (A now-slightly-dated review of the state of state Blakely fixes and high court rulings is available at this post.)

      Download raybins_tennessee_update.doc

      June 7, 2005 at 02:21 AM | Permalink | Comments (0) | TrackBack (0)

      June 6, 2005
      Raich commentary galore
      The blogsphere is, unsurprisingly, buzzing with analysis and commentary on the Supreme Court's decision today in Raich (basics here). There is already a week's worth of interesting commentary from many heavy-hitters over at SCOTUSblog, and certainly The Volokh Conspiracy is living up to Orin's promise of lots of Raich-blogging.

      Not to be overlooked, and of special interest for folks interested in sentencing topics, Mike over at Crime & Federalism has created this great mega-post of his early Raich analysis, which gives particular attention to the intersection of federalism and criminal justice concerns. Other posts on Raich at Crime & Federalism are also must-reads.

      Since all these bright lights have Raich well-covered, I am disinclined to add further to the deluge of Raich words (though I must note with amusement's Justice Stevens' comical reference, late in the Court's opinion, to marijuana as an "extraordinarily popular substance"). But I am inclined to spotlight and link below some pre-Raich posts in which I have explored various federalism and sentencing intersections:

      a.. Reasons for rooting for criminal justice federalism
      b.. Criminal justice, constitutional law, federalism and hot button issues
      c.. Apprendi, Blakely and federalism
      d.. Blakely, federalism, retroactivity and pragmatism
      June 6, 2005 at 03:52 PM | Permalink | Comments (2) | TrackBack (0)

      Rehnquist's capital legacy
      The Washington Post's Charles Lane, who last week gave us this interesting piece about the death penalty in Germany, today has this strong piece exploring the legacy of Chief Justice Rehnquist in the arena of capital punishment. Here's a sample:

      [O]ne clear legacy of the Rehnquist court is its contribution to accelerating the pace of executions in the United States. The Rehnquist court, in tandem with Congress, took some key steps during the 1980s and 1990s to reduce time-consuming death row appeals. These appeals had generally taken the form of petitions in federal court for writs of habeas corpus, based on alleged constitutional defects in a particular defendant's trial.

      Partly as a result, the number of executions in the United States reached a modern annual peak of 98 in 1999 — before declining to last year's total of 59.

      June 6, 2005 at 12:04 PM | Permalink | Comments (0) | TrackBack (0)

      8th Circuit is at it again
      Reinforcing my observations here about the divergent pace of Booker appeals in different circuits, I see on this official opinion page that the ever-active Eighth Circuit has released another large bunch of sentencing rulings today. From a quick scan of the official summaries, I do not think much new ground is broken in this batch. But, because I have 70-plus pages of Raich to read, I am pretty sure I won't get through all of the Eighth Circuit's latest Booker wisdom, and I am also sure that I need readers' help to spot any important jurisprudential needles in the Booker haystacks that the Eighth Circuit is now producing on a daily basis.

      June 6, 2005 at 11:53 AM | Permalink | Comments (0) | TrackBack (0)

      A result in Raich and, of course, Booker GVRs
      As always, SCOTUSblog is the go-to place for news and commentary on today's work by the Supreme Court, and How Appealing is the go-to place for links to media coverage. As detailed in this post by Lyle Denniston at SCOTUSblog, the biggest criminal justice news today is that the Court in Raich ruled 6-3 "that Congress had the authority to make it a crime to grow and use marijuana purely for personal medical purposes when recommended by a doctor [and thus] overturned a Ninth Circuit ruling that the federal Controlled Substances Act of 1970 exceeded Congress' Commerce Clause power when applied to medical marijuana used under California law." Justice Stevens wrote the opinion for the Court in Raich, and Justice Scalia concurred in the judgment and wrote an opinion. Justice O'Connor wrote the principal dissent, joined by the Chief Justice and Justice Thomas, and Justice Thomas also wrote a separate dissent.

      And, of course, what would be a big day at SCOTUS without more Booker-inspired GVRs? I count a dozen more Booker GVRs on this order list, which I believe takes the total to somewhere around 750.

      UPDATE: SCOTUSblog in this post has links to the four Raich opinions, and Orin Kerr is already promising lots of Raich commentary over at The Volokh Conspiracy. Mike at Crime & Federalism here notes that "Supreme Court experts had predicted a 9-0 or 8-1 victory for the government, so in a sense, this is a victory for enumerated powers advocates and social justice." Mike also makes the trenchant comment that "Justice Stevens and the other liberals on the Court have continually overlooked the fact that the federal criminal justice system falls disparately upon blacks."

      BETTER UPDATE: In response to a very sensible comment, here is a link to the full Raich opinion (which, in case anyone is counting, clocks in at 79 total pages and thus is still 45 pages shorter than all the Booker opinions).

      June 6, 2005 at 11:05 AM | Permalink | Comments (1) | TrackBack (0)

      June 5, 2005
      DOJ's post-Booker litigation policies and plans
      I learned so much from my all-too-brief San Antonio trip to talk to federal defenders at the National Seminar for Federal Defenders, but perhaps of greatest moment was what I heard about the Justice Department's litigation policies and plans. The DOJ details recounted below all come from hearsay reports; but since hearsay is often good enough for federal prosecutors at sentencing, I think it is good enough for me to report on what federal prosecutors are now doing about sentencing.

      First, concerning initial sentencings, I heard a report that line prosecutors have generally been instructed (formally? informally?) to seek only within-guideline sentences. (I also heard, however, that some prosecutors in some districts in some cases have requested above-guideline sentences.) Given that due process/ex post facto principles may place limits on increasing a post-Booker sentence based on pre-Booker conduct (background/links here), it seems wise for DOJ to generally urge within-guideline sentences for crimes committed before Booker. But I wonder if this approach will change when sentencings involved only post-Booker criminal conduct.

      Second, concerning sentencing appeals, I heard that DOJ official Bill Mercer stated at the recent big Booker event in San Francisco (details here) that there were five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter. This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness.

      It is quite possible these hearsay reports are a bit off, and I encourage anyone in the know to make any needed clarifications in the comments.

      June 5, 2005 at 05:40 PM | Permalink | Comments (1) | TrackBack (0)

      Doozy DC dicta on Booker
      Friday was a big day in the circuits, and I have already discussed Booker developments in the Eighth and Ninth Circuits, a big Blakely ruling in the First Circuit, and a big Apprendi habeas ruling in the Second Circuit. But also making noise on Friday was the DC Circuit (which has been perhaps the quietest Booker circuit to date). And the noisiest part of US v. Price, No. 03-3088 (DC Cir. June 3, 2005) (available here) is some of the dicta from Judge Henderson in her partial concurrence.

      In Price, the majority concluded that a sentencing reversal and remand was necessary because "the District Court committed error by: (1) denying Price's request for a third-level reduction for acceptance of responsibility when, under the plain language of the Guidelines, Price was entitled to such a reduction; and (2) including one of the two Maryland convictions in the calculation of Price's criminal history score, when Price clearly disputed that conviction and the Government did not sustain its burden of proof in establishing the conviction." These rulings and the Price court's account of Booker make for interesting reading.

      But what makes Price really stand out are the comments from Judge Henderson in her partial concurrence about what can happen upon remand and about the nature of post-Booker sentencing. Here's a sample:

      Under the new sentencing regime, and on this record, I believe it would be reasonable for the sentencing court on remand to decline to consider awarding Price any credit for accepting responsibility and to re-impose, if not increase, the sentence vacated herein.... Given that Price’s public criminal record reveals a man determined to burnish his criminal credentials and at society's expense — two factors appropriate for consideration on resentencing, see 18 U.S.C. § 3553(a)(1) & (2)(C) — I believe the sentencing court could reasonably decline to lessen his punishment in any way, including by considering his alleged acceptance of responsibility....

      As to the two Maryland convictions, I do not agree that, on remand, the government must "meet its burden under [our pre-Booker precedents].... The reason such pin-point accuracy was necessary, however, was that the prior conviction had to constitute a "crime of violence" in order to be used in computing the defendant's offense level. But "offense levels," "adjustments," "departures" and all of the other Guidelines argot has been jettisoned by Booker. We now operate in a "back to the future" sentencing world when, pre-Guidelines, all that our Circuit required of the government in this regard was that it submit "some verification," — that is, any "evidence of a sufficiently reliable caliber" — to support the information that it supplied the sentencing court and that the defendant challenged.

      June 5, 2005 at 10:25 AM | Permalink | Comments (1) | TrackBack (0)

      Interesting blogsphere sentencing items
      I see a number interesting sentencing-related items on other blogs that merit note:

      a.. TalkLeft spotlights here the push in North Carolina to reform the administration of the death penalty in that state.

      a.. How Appealing here has links to articles discussing the recent release from confinement of Leroy Hendricks, who was at the center of the Supreme Court's 1997 ruling Kansas v. Hendricks about involuntary commitment for sex offenders.

      a.. Orin Kerr at the at The Volokh Conspiracy here makes some interesting points about an interesting Washington Post piece about the death penalty in Germany.
      June 5, 2005 at 08:45 AM | Permalink | Comments (0) | TrackBack (0)

      June 4, 2005
      1st Circuit addresses Blakely's applicability to revocation of supervised release
      This past Friday was a day for interesting (and arguably ground-breaking) Apprendi/Blakely decisions. In addition to the notable Second Circuit ruling on Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here), Friday also brought from the First Circuit US v. Work, No. 04-2172 (1st Cir. June 3, 2005) (available here), which rules that Blakely is not applicable to judicial determinations in the course of revoking supervised release and ordering a term of imprisonment.

      Work is an interesting ruling for a number of reasons, and it provides useful background on both Blakely and the federal law of supervised release. Here is the decision's opening paragraph:

      In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt. We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong.

      Among other interesting aspects of the Work court's discussion of these issue is this (debatable?) passage addressing not only the scope of the Sixth Amendment, but also due process concerns and requirements (citations omitted):

      The difficulty with the appellant's argument is that this type of judicial factfinding [i.e., finding facts to confirm violation of supervised release conditions] does not pose a Sixth Amendment problem. The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections. To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty). As such, the accused must be accorded a suitable panoply of due process protections. The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding.

      (First Circuit aficionados get only one guess as to the author of Work and its discussion of "the Sixth Amendment's prophylaxis.")

      June 4, 2005 at 12:10 PM | Permalink | Comments (0) | TrackBack (1)

      June 3, 2005
      Notable 2d Circuit Apprendi ruling on habeas
      Thanks to Appellate Law & Practice's post here, I see the Second Circuit in a major habeas ruling involving New York sentencing statutes has put a fascinating and important gloss on Apprendi (and, consequently, Blakely and Booker). Here is the court's opening paragraph in Brown v. Greiner, No. 03-2242 (2d CIr. June 3, 2005) (available here):

      These three appeals, which we have consolidated, present the same question: Were the state court decisions affirming Petitioners' extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10, "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d). The relevant Supreme Court ruling to which the petitions refer is Apprendi v. New Jersey, 530 U.S. 466 (2000), which ruled that in order for a sentence to comply with the dictates of the Sixth Amendment, a factual finding that drives a sentence above the otherwise applicable statutory maximum penalty (other than the fact of a prior conviction) must be found by the jury beyond a reasonable doubt, or be admitted by the defendant. We hold it was not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing judge's "opinion" as to what type of sentence would "best serve the public interest" is not a factual finding within the meaning of Apprendi. We accordingly reverse the judgments granting writs of habeas corpus in Brown and Rosen, and affirm the judgment denying the writ in Ramos.

      June 3, 2005 at 06:49 PM | Permalink | Comments (0) | TrackBack (0)

      Contrasting neighbors: the Booker pipeline in the 8th and 9th Circuits
      The contrast between the status of Booker pipeline cases in the Eighth and Ninth Circuits really struck me today as I did my mid-day circuit review. I see on this official opinion page that the ever-active Eighth Circuit has today released yet another sizable number of sentencing rulings; an on-line search indicates that the Eighth Circuit has now produced nearly 150 Booker pipeline rulings and over 70 in the past month alone. Meanwhile, though this week the en banc Ninth finally gave us a plain error decision in Ameline (basics here, commentary here), an on-line search highlights that the Ninth Circuit has resolved only a handful of Booker pipeline cases in the last month.

      The divergent pace of Booker pipeline cases in these circuits is even more dramatic when one considers that, according to recent USSC appeal statistics, the Ninth Circuit has nearly three times as many as guideline appeals as the Eighth Circuit. Based on the USSC data, I would guess that the Eighth Circuit is getting close to having its Booker pipeline mostly cleared out, while the Ninth Circuit may have over a thousand Booker cases clogged up in the pipeline. As noted here, a press report about Ameline suggested there were 700 plain error case in the Circuit, and there now have to be many more in which Blakely/Booker claims were preserved. The long-awaited Ameline decision, and its adoption of a Crosby limited remand approach, should get the Ninth Circuit pipeline flowing, but there is a lot of plumbing ahead.

      Interestingly, it is hard to figure out which circuit is taking a wiser approach to all the Booker pipeline cases. The Eighth Circuit's tough approach to plain error in Pirani (basics here) has allowed the circuit to affirm many sentences imposed before Blakely and Booker came along. But, if (when?) the Supreme Court takes up the plain error issue (background here and here and here), and if (when?) the Supreme Court takes a different view on plain error than does Pirani, I expect there will be a whole lot of new GVRs bringing these cases back before Eighth Circuit. Of course, the problem with the Ninth Circuit's go-slow approach is that, as explained here, it seems unlikely we should expect any clarifying Blakely or Booker decisions until at least March 2006. Thus, unless the Ninth Circuit is prepared to keep its Booker pipeline plugged up another year, a go-slow approach is not clearly more effective or efficient that the Eighth move-along approach.

      Indeed, the more I reflect on the pipeline mess (and the circuit-by-circuit disparity it has engendered), the more ingenious appears the Third Circuit's approach in Davis (basics here), which essentially calls for sending all significant pipeline cases back to the district court. Though doctrinally debatable, the Davis approach has a simplicity and efficiency that is hard not to like in the crazy, mixed-up post-Booker world in which we all now live.

      June 3, 2005 at 01:00 PM | Permalink | Comments (0) | TrackBack (0)

      Connecticut Gov. vetoes bill to equalize crack/powder sentences
      From this post at The Connecticut Law Blog, I see this disappointing news that Connecticut Governor M. Jodi Rell on Thursday vetoed a bill that would have reduced the criminal penalties for possession of crack cocaine and equalized them with those for powder cocaine. As this newspaper article details, Jesse Jackson had sent Rell a potent letter which stated that approving the bill would send a message "that Connecticut won't stand for a criminal justice policy that promotes any racial disparities." (As noted here, the New York Times made a similar point in a recent editorial.)

      This official press release provides more details on the bill and Rell's decision, as well as letters Rell wrote to interested Connecticut officials to explain her decision. Here's an interesting excerpt from the press release:

      "Crack cocaine is one of the most dangerous, addictive drugs on the streets today, and is the source and cause of too much violence in our cities," Governor Rell said. "Now is not the time to ease our law enforcement efforts."

      At the same time, the Governor said, she understands and accepts the view voiced by many in the African American and Latino communities that there is a clear disparity in Connecticut prison populations as a result of current sentencing laws. Accordingly, she is asking the General Assembly for a revised bill and is offering proposals to address the disparities to ensure that Connecticut's criminal justice system is more sensitive to the concerns of minorities. "I have been deeply moved by the concerns and arguments that have been raised," Governor Rell said. "I have also listened to the many painful stories of racial disparities, and I intend to act to address them," Governor Rell said. "I want Connecticut in the forefront of this fight."...

      In her veto message, the Governor proposed a new compromise bill – setting the threshold at one-half ounce (14 grams) for both crack and powder cocaine – and encouraged the legislature to approve such a change before the current session adjourns.

      June 3, 2005 at 12:34 PM | Permalink | Comments (0) | TrackBack (0)

      Judge Gertner on Apprendi, Ring, and Blakely in capital setting
      I am back from a great but too-brief San Antonio trip, and I have lots of new insights from talking to federal defenders that I hope to share in future posts. But today I am just trying to catch up (and also make time for my favorite local sporting event).

      The most interesting development I missed yesterday is a new opinion from Mass US District Judge Nancy Gertner in US v. Green, the capital case which has already prompted some notable rulings from her court and the First Circuit. This latest opinion in Green concerns the government's effort to "seek to justify [the defendant's] death sentences on the basis of a number of aggravating factors [that include] allegations of prior crimes that were not charged in the instant indictment and, indeed, have never been adjudicated in any setting." Not so fast, says Judge Gertner (in an opinion available for download below):

      Together, Apprendi, Ring, and Blakely abandoned the Court's previous focus on the procedural protections required when a defendant is exposed to punishment above the statutory maximum. They emphasized the protections that must be accorded more generally to facts, including those factors traditionally characterized as sentencing factors, that are essential to punishment because they increase a defendant’s punishment even within a statutory sentencing range. Plainly, prior unadjudicated crimes that the government offers to justify the imposition of the ultimate punishment fit within this category of essential factors.

      Although defendants urge the Court to treat all nonstatutory aggravating factors alike and require that everything be screened, my ruling is a narrow one, limited to prior unadjudicated crimes. The other non-statutory factors here (lack of remorse and victim impact), like certain of the listed statutory aggravators, are factors tied to the charged offense. They do not raise the same constitutional concerns as prior unadjudicated accusations of crime apparently unrelated to the offense and uniquely prejudicial.

      Download gertner_green_memo.pdf

      June 3, 2005 at 09:42 AM | Permalink | Comments (0) | TrackBack (0)

      June 2, 2005
      NY Times on drug sentencing
      This morning the New York Times has this potent editorial entitled "Bring Fairness to Drug Sentencing" that is focused on the sentencing disparity between crack and powder cocaine offenses. Here are highlights:

      Congress spawned a national trend toward discriminatory sentencing when it drew a false distinction between powdered cocaine and crack cocaine for law enforcement purposes during the 1980's ... [that] has resulted in a racially biased sentencing policy, since crack users are mainly black and Latino, while powdered cocaine tends to be a drug of choice for affluent whites. This system was emulated by the states, and its blatant unfairness undermines respect for the judicial system in communities of color.

      The United States Sentencing Commission has repeatedly urged Congress to deal with this shameful problem by reducing the sentencing for possession of crack to bring the two more in line. But Congress has rejected this idea, for fear of being seen as "soft on drugs." State legislatures have generally been paralyzed by this same fear.

      Nevertheless, the argument for fairness is finally being aired in several states, including California, South Carolina and Connecticut. Both houses of the Connecticut Legislature have passed a bill that would bring crack and powdered cocaine sentences into line. Gov. Jodi Rell is equivocating on whether she will sign. She has the chance to demonstrate to the people of the state that she has the strength of character to do something that has no discernible political advantage, simply because it's the right thing. It is an opportunity she shouldn't refuse.

      June 2, 2005 at 08:59 AM | Permalink | Comments (0) | TrackBack (1)

      Rough day for Booker defendants in the Circuits
      I am now in San Antonio to participate in the on-going National Seminar for Federal Defenders. Getting in the local spirit, I must note that, though Wednesday was a good day for the Spurs, it was not a good day for Booker defendants in the circuits. The Ninth Circuit's en banc decision in Ameline (basics here, commentary here), though not giving the government its requested relief, still makes life more difficult for defendants asserting plain error than did the original Ameline panel decision. And, the government scored notable complete victories in Booker-related decisions from other many circuits on Wednesday:

      From the Sixth Circuit, in US v. Luebbert, No. 03-5598 (6th Cir. June 1, 2005) (available here), the court in a short (and split) decision in a GVRed case from the Supreme Court refused to consider a Booker claim due to an appeal waiver. Judge Moore dissented because she believed "that Luebbert's plea agreement [did] not unambiguously waive Luebbert's right to raise a Sixth Amendment challenge to his sentence on the basis of United States v. Booker."

      From the Seventh Circuit, in US v. Cieslowski, No. 03-2890 (7th Cir. June 1, 2005) (accessible here), the court in a lengthy opinion affirmed a lengthy sentence over seemingly sound claims of ineffective assistance. Along the way, the court provided an interesting discussion of the status of so-called (C) pleas after Booker — for non-FSG-geeks, those are pleas in which the parties agree to a particular sentence pursuant to Fed. R. Crim. P. 11(c)(1)(C).

      From the Eighth Circuit, Wednesday marked the third consecutive work day in which the court issued roughly a half-dozen sentencing opinions which, more often than not, found defendants' Booker claims unavailing.

      From the Tenth Circuit, in US v. Dalton, No. 04-7043 (10th Cir. June 1, 2005) (available here), the court reiterated its view that preponderance fact-finding is all the guidelines require, and upheld a guideline calculation of drug quantities based principally on "testimony [that] was vague and contradictory at times." The court also rejected a Booker plain error claim based on the fourth prong of the plain error test.

      June 2, 2005 at 03:07 AM | Permalink | Comments (0) | TrackBack (0)

      Ameline in less time
      One of my kind cyber-friends sent me a more user-friendly version of the Ninth Circuit's Ameline decision (basics here). This version, available below, should provide for quicker downloading and also enables cutting-and-pasting. Even in this user-friendly version, the whole opinion is still 103-total pages. But the majority's work might be fairly summarized as: See US v. Crosby, 397 F.3d 103 (2d. Cir. 2005). Ditto!

      The one Ameline opinion that is most worthy of a very close read comes from Judge Wardlaw. The second part of her opinion includes an crackling account of why "Booker is a signal event in the development of the law," and the first part of her opinion has this notable sentence assailing the majority's "limited remand" approach to plain error:

      [W]hile at first blush it may be enticing to an overworked and overscrutinized bench to rid ourselves of hundreds, perhaps thousands, of appeals, we may create much more work for ourselves down the road than if we had simply done it right in the first place.

      Another way to get Ameline highlights is from press coverage provided by The Recorder and the Los Angeles Times and the AP. The Recorder story includes the interesting data tidbit that there are "about 500 [Booker] appeals in limbo at the 9th Circuit, with as many as 200 more in the pipeline, according to the clerk's office."

      Download Ameline.pdf

      June 2, 2005 at 02:12 AM | Permalink | Comments (4) | TrackBack (0)

      Florida Supreme Court allows capital jury override despite Ring
      A helpful reader pointed me to an interesting death penalty decision, noted here by Abstract Appeal, in which the Florida Supreme Court holds that Ring does not preclude a trial judge under Florida's capital statutes from overriding a jury's recommendation of life imprisonment to sentence a defendant to death. Though the decision in Marshall v. Crosby, No. 02-420 (Fla. May 26, 2005) (available here), indicates that the Florida Supreme Court has previously rejected a series of challenges based on Ring, I get the impression that this is the first case considered by the court in which the sentencing judge imposed a death sentence over a jury recommendation of life.

      Though all aspects of Marshall are interesting, a particularly notable aspect of the majority's opinion is its reliance on the prior conviction exception as one of many alernative grounds for its holding. And the dissent by Justice Anstead presents a particularly thorough and powerful set of arguments against the constitutionality of Florida's jury override procedure in the wake of Ring. And since Justice Anstead's dissentin Marshall has the best rhetoric, I'll quote from that opinion:

      Today, we approve a practice that has now been outlawed in the United States by this nation's highest court, the imposition of the death penalty by a single judge in the face of a jury finding that the circumstances of the case do not support a sentence of death and require a life sentence. Because this outcome essentially allows a trial judge to ignore a jury's actions and direct a verdict and judgment for death in favor of the State, it is patently offensive to our constitutional notions of due process and the right to a jury trial....

      Clearly, Ring was a decision meant to increase the consistency and accuracy of identifying those cases where the death penalty is warranted by requiring the facts necessary to impose the death sentence to be found by the jury. The Court's decision today flies directly in the face of the Sixth Amendment and the Supreme Court's decision in Ring. Rather than embrace the Sixth Amendment's protections and look for ways in which the role of the jury could be modified to bring Florida into line with the Supreme Court's prevailing constitutional law, the majority has effectively removed the jury from the death penalty equation. This is a sad day for constitutional law and justice in the State of Florida.

      June 2, 2005 at 01:28 AM | Permalink | Comments (0) | TrackBack (0)

      June 1, 2005
      Off to San Antonio
      I have to complement the Ninth Circuit for its great timing: it was kind enough to issue Ameline only a matter of hours before I have a long trip to San Antonio to partipate in the National Seminar for Federal Defenders taking place there this week. Consequently, I have (still more) reading material for the airplane ride (and with the recent Ohio decisions), and everyone else has Ameline to digest (along with all the other recent posts since this previous update) while blogging slows down for the next few days.

      a.. Cutter, Andersen, another capital grant and Booker GVRs
      b.. A capital waste of time?
      c.. Deeper thoughts on Marsh and sentencing burdens of proof
      d.. Morning coverage of SCOTUS work
      e.. Religion, sentencing and corrections

      a.. Great media coverage of the post-Booker world
      b.. Reports of notable NY resentencings
      c.. More details on Pabon Cruz resentencing
      d.. Bevy of notable Booker circuit rulings
      e.. Ninth Circuit issues Ameline!
      f.. Latest development in Ohio's Blakely story

      June 1, 2005 at 02:53 PM | Permalink | Comments (0) | TrackBack (1)

      Ninth Circuit issues Ameline!
      Thanks to this post at How Appealing, I see news that the Ninth Circuit has finally issued its en banc Booker plain error decision in Ameline. According to Howard's report, the decision runs a total of 103 pages, and "the court, through a seven-judge majority, agrees to apply the Second and Seventh Circuits' limited remand approach."

      UPDATE: Here is a link to the Ameline decision, but it is giving me trouble (and the document is in a form now precluding cut-and-paste). Here's a quick transcription of the key paragraph from the introduction:

      [W]e hold that when we are faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.... In essence, we elect to follow the approach adopted by the Second Circuit in US v. Crosby, 397 F.3d 103 (2d Cir. 2005).

      ANOTHER UPDATE: A quick scan suggests that Ameline majority opinion ends with a seemingly coy discussion of the burden of proof at sentencing. I highly encourage readers to comments on this or any other aspect of the decision while I head for a plane.

      June 1, 2005 at 01:41 PM | Permalink | Comments (5) | TrackBack (0)

      Religion, sentencing and corrections
      I have not discussed the Supreme Court's decision in Cutter yesterday largely because, as highlighted by this helpful summary from Marty Lederman at SCOTUSblog, the decision was relatively cursory and did not address in any broad way how the Establishment Clause might impact the intersection of religion, sentencing and corrections.

      However, this post today at CrimProf, which spotlights this AP story about a Kentucky state judge "offering some drug and alcohol offenders the option of attending worship services instead of going to jail or rehab," provides a stark reminder there may be a lot of future litigation over the ways in which religion and sentencing and corrections cross paths. Kaimi Wenger at PrawfsBlawg in this post, after noting he is "naturally suspicious of coerced church attendance," ponders what a judge should do "in cases where it looks like there is a genuine rehabilitation benefit to be gained from channeling some convicted people to a religious organization that has an effective social network that will help them overcome their problems."

      This story from Kentucky only reinforces the point, discussed in this post when cert was first granted in Cutter, that these are interesting times in church-sentencing-prison relations. As detailed in articles here and here and here, Florida and some other jurisdictions have been experimenting with "faith-based" prisons, which house inmates who have chosen to take part in rehabilitation programs run by volunteers from religious groups. Though the Cutter ruling seems unlikely to directly impact the faith-based prison movement, it could perhaps bring still more attention to the law and policy of religious involvement in corrections.

      June 1, 2005 at 01:16 PM | Permalink | Comments (0) | TrackBack (0)

      Latest development in Ohio's Blakely story
      I have not noted a number of recent intermediate appellate court decisions on Blakely from Ohio, because, as detailed in this Ohio Criminal Sentencing Commission memo, the basic story has not changed much of late: most of Ohio's intermediate appellate courts have found Blakely largely inapplicable in Ohio, though the First District Court of Appeals has held to its view, discussed here and here, that Booker significantly altered the Blakely analysis in Ohio. (Background on how 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, can be found in posts here and here.)

      But yesterday brought a development that merits mention: in a pair of major en banc cases — State v. Lett, Nos. 84707 & 84729, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) and State v. Atkins-Boozer, No. 84151, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) — the Eighth District Court of Appeals, "cleaned up" some disparate Blakely rulings by prior panels. In these (lengthy) decisions, the Eighth District Court of Appeals held that Ohio's sentencing scheme largely dodges Blakely problems. Here are parts of the interesting opening paragraphs of Lett:

      In Blakely v. Washington, the United States Supreme Court held that the "statutory maximum" for sentencing purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Shortly after the supreme court released that opinion, Justice Sandra Day O'Connor was widely quoted as saying that the decision "looks like a No. 10 earthquake to me." These remarks proved accurate. The application of Blakely to sentencing issues relating to the maximum, minimum and consecutive sentences under [Ohio] R.C. Chapter 2929 have now divided this court, with the result being the imminent issuance of conflicting opinions from within this appellate district....

      [W]e invoked our en banc procedure, extant since 1976, to resolve preemptively the differences within this district. In doing so, we acknowledge that the Ohio Supreme Court has certified several cases touching on the issues to be addressed herein, including one involving Lett in an unrelated case. Nevertheless, we think it provident to resolve the conflicts within this district pro tempore until such time as the supreme court resolves these issues definitively.

      As might be expected, the complexity of the issues presented in this case has left this court deeply divided. We recognize that the orderly administration of justice is the rock upon which government rests. More criminal cases are heard in this appellate district than in any other in this state. Our refusal to speak on these issues, no matter how discordantly on an individual basis, would create the untenable situation where individual defendants would be sentenced differently pending the Ohio Supreme Court's decision. All of us agree that would be an unacceptable outcome and must be avoided; hence, our agreement is to apply the law set forth in this opinion until the Ohio Supreme Court renders a final decision.

      Just in case you do not have time to read nearly 100 pages of trenchant Blakely Ohio analysis from the judges of the Eighth District Court of Appeals, highlights of the decisions are provided in a helpful official court press release that is provided for downloading below.

      Download ohio_8th_ca_blakely_summary.pdf

      June 1, 2005 at 11:50 AM | Permalink | Comments (0) | TrackBack (0)

      Morning coverage of SCOTUS work
      Howard Bashman at How Appealing has his usual superlative coverage of all the newspaper stories concerning the Supreme Court's work yesterday.

      I found particularly interesting the articles, linked here, discussing the Supreme Court's grant of cert in the Kansas v. Marsh, the death penalty case. (My own recent commentary on Marsh is here and here.) In addition to providing background on the case, the articles discuss the decision by the Kansas legislature to hold off on a "legislative fix" to its capital sentencing statute until the US Supreme Court considered the state's cert petition.

      UPDATE: SCOTUSblog has more great coverage of recent SCOTUS work here, including a link to this interesting Findlaw commentary by Prof. Sherry Colb on last week's Deck decision concerning shackling a defendant during the penalty phase of a capital trial.

      June 1, 2005 at 08:15 AM | Permalink | Comments (0) | TrackBack (0)

      May 31, 2005
      Deeper thoughts on Marsh and sentencing burdens of proof
      As detailed here, my first reaction to today's cert. grant in Kansas v. Marsh was "blah...another capital case." Fortunately, fellow Prof. Adam Thurschwell had deeper substantive insights on Marsh, since the case raises the interesting question of whether it is constitutionally acceptable for a state to require a jury to rule for death if it finds the aggravating and mitigating circumstances evenly balanced. Upon my request, Adam has allowed me to share his insights here:

      It seems to me that the Court may have foreshadowed its view in the recent Deck v. Missouri case (visibly shackled defendant during DP penalty phase violates due process), where, by analogy with the effect of shackling on the presumption of innocence, the Court said of the penalty phase decision,

      Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the " 'severity' " and " 'finality' " of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U.S. 721, 732 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977)). . . . . . Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue.

      I am wondering if this language can be squared with the Kansas statute. They're probably distinguishable, but the closest analogy would seem to be the cases on due process limitations on the burden of proof for various issues, e.g., Medina v. California (OK to require defendant to proved by preponderance that s/he's incompetent) and Oklahoma v. Cooper (not OK to require defendant to prove by clear and convincing evidence that he's competent). Given the language from Deck, the life/death decision sounds much closer to In re Winship, which emphasizes how the BARD standard is designed to implement the presumption of innocence. This issue (and the potential Winship analogy) is important beyond the Kansas statute (which is unique to my knowledge, but I'd be interested in hearing otherwise), by the way, because the federal death penalty statute (and many state statutes as well, I believe) do not require juries to find that death is the appropriate sentence BARD; instead, they generally require that the individual aggravators be found BARD. The jury gets no burden of proof instruction at all on the ultimate life/death finding.

      I am spotlighting Adam's insights not only because of the interesting Deck connection, but also because he rightly spots that Marsh might be a vehicle for the Supreme Court to speak more broadly to issues relating to the burdens of proof at sentencing — issues which, as stressed in my most recent Blakely/Booker article, I think are of critical future importance. Consequently, I suppose I should not be so grumpy about the Supreme Court taking up Marsh.

      May 31, 2005 at 02:53 PM | Permalink | Comments (0) | TrackBack (0)

      More details on Pabon Cruz resentencing
      In this post this past weekend, I noted an interesting press report on SDNY Judge Gerard Lynch's resentencing decision in the notable child pornography case of US v. Pabon-Cruz. Today I heard from one of Mr. Pabon Cruz's lawyers, who has allowed me to post this further report on Judge Lynch's work:

      This was a long long litigation that Judge Lynch had been struggling with for a while because the pictures were so troubling and yet the client was so young and promising.

      The client had been in jail the equivalent of 3 years. Judge Lynch had for a while said that if there were no mandatory minimum he would impose 5 years. In the end, I think a very favorable psychological report by the Government's expert persuaded the judge to go down an additional year. For Booker enthusiasts, he also said that the guidelines were a serious consideration in his decision as well, and that since the guidelines were 97-120, he thought roughly half (48 months) was appropriate given all the other 3553(a) factors.

      Interestingly, Judge Lynch had asked the parties to provide him with data on other similar cases so he could address the question of unwarranted disparities, but then at sentencing said that each case was so unique that he decided the information was not helpful to him. The biggest 3553(a) factor is this case was the client's youth and his psych evaluations which said the client was not a danger to children.

      The defense and the client were disappointed. We thought three years was much more than enough punishment, but still 48 months is a big improvement over the mandatory 10 years he had been facing.

      This report also indicated that Judge Lynch appeared "to be reading from the bench," and thus I am thinking that we may see a written opinion reflecting the Judge Lynch's thinking in Pabon-Cruz before long.

      May 31, 2005 at 02:50 PM | Permalink | Comments (0) | TrackBack (0)

      A capital waste of time?
      In my review of this morning's SCOTUS action here, I suggested I was annoyed by the Court's decision to grant review in the death penalty case of Kansas v. Marsh. Let me explain this reaction.

      First, some background: Kansas enacted a new death penalty statute in 1994 and prosecutors had sent seven men to Kansas' death row before the Kansas Supreme Court in Marsh last December found what has been described as a "technical flaw" in the operation of the state's capital sentencing procedures. Discussion of the Marsh ruling is available in posts here and here, and the Death Penalty Information Center's state-by-state charts provide more background on capital punishment in Kansas.

      Now, my complaint: No aspect of Marsh, other than that it is a capital case, seems of sufficient significance to merit a place on the Supreme Court's ever-shrinking docket. Perhaps the fate of six men still on Kansas' death row could hang in the balance, though I would predict that there will be a lot more litigation about their fate even if SCOTUS reinstates their death sentences. And realize that, unlike in Miller-El or Penry where the Court has twice reviewed a death sentence that seemed hinky, here the Supreme Court is reviewing a state court decision to overturn a state death sentence.

      Especially against the backdrop of all the post-Blakely and post-Booker uncertainty, wherein the fate of literally hundreds of thousands of defendants hang in the balance, I continue to be troubled by the Supreme Court's continued preoccupation (fetishism?) with capital sentencing procedures (which I now am giving the label a "legal culture of death"). The Marsh grant, which I believe is already the third capital case in which cert. has been granted for the 2005 Term, reinforces yet again my recent observations in posts here and here that the Supreme Court is spending too much time and energy on death penalty litigation when there are many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

      UPDATE: Lyle Denniston at SCOTUSblog has a long post about Marsh entitled "A major death penalty case? Maybe not." Lyle's terrifically helpful report suggests that perhaps the substantive issue in Marsh might be of some broader significance, but it also suggests that the procedural posture of the case is likely to ensure a messy outcome.

      May 31, 2005 at 11:18 AM | Permalink | Comments (4) | TrackBack (2)

      Cutter, Andersen, another capital grant and Booker GVRs
      As well covered over at SCOTUSblog here, this morning's opinions from the Supreme Court included an unanimous reversal in Cutter v. Wilkinson, which serves to uphold congressional power "to require officials of state and local prisons and jails to find ways to allow inmates to practice their religious beliefs," and another unanimous reversal in Arthur Andersen LLP v. US, which "overturned the criminal conviction of the now nearly defunct auditing giant, Arthur Andersen LLP, because of faulty jury instructions on the destruction of audit documents related to the Enron scandal."

      Though I expect Cutter v. Wilkinson (03-9877) will be the buzz of the blogsphere, I am more intrigued (or perhaps annoyed) that the Court agreed to hear Kansas v. Marsh (04-1170) which concerns the constitutionality of Kansas' death penalty law. As explained at SCOTUSblog at the end of this post, the "main question raised by the state of Kansas' appeal is whether a death sentence is barred if the aggravating and mitigating circumstances are evenly balanced," but "the Court added two procedural questions in the case: does it have jurisdiction to review the Kansas Supreme Court decision, and whether the state court ruling was based on state law and thus immune to Supreme Court review." In a subsequent post I will explain why I am a bit grumpy about the cert. grant in Marsh.

      And, continuing its new tradition, the Supreme Court's order list included some more Booker-inspired GVRs, although I count only 7 this morning. Also, interestingly, that order list includes a grant of a motion by petitioner in Halbert v. Michigan (an interesting criminal case discussed here) for leave to file a supplemental brief after argument. I wonder how often this happens.

      May 31, 2005 at 10:43 AM | Permalink | Comments (0) | TrackBack (0)

      May 30, 2005
      Bevy of notable Booker circuit rulings
      The late hour and an impending long holiday drive home precludes me from providing a thorough run-down of all the important Booker circuit rulings which came out late last week. But I can at least quickly note that the First, Second, Fourth and Eighth Circuits all issued Booker decisions on Friday that merit review.

      Appellate Law & Practice has very brief accounts of the decisions from the First Circuit and from the Second Circuit. Of this pair, the Second Circuit's work in US v. Selioutsky, No. 04-2740 (2d Cir. May, 27, 2005) (available here), is most notable for its discussion about the need to excise 3553(b)(2) and about how reasonableness review should operate. (UPDATE: The Second Circuit Blog now has this post on Selioutsky.)

      But, not to be overlooked, there is major work done by the Fourth Circuit in its discussion of appeal waivers in US v. Blick, No. 04-4887 (4th Cir. May 27, 2005) (available here). And another major Friday by the ever-active Eighth Circuit produced seven(!) published sentencing rulings on its opinion page covering a broad range of Booker issues (in ways that most defendants and defense attorneys will not like).

      Because I have only been able to give these opinions a very quick look, I highly encourage readers to use the comments to highlight any particularly notable aspects of Friday's Booker bounty.

      May 30, 2005 at 02:21 AM | Permalink | Comments (0) | TrackBack (0)

      Reports of notable NY resentencings
      A night with high-speed access on the road has allowed me to catch up on some Booker news from the end of last week. And since I am in NYC, I was particularly intrigued by the news reports of resentencing decisions from SDNY Judges Harold Baer and Gerard Lynch.

      As detailed in this NY Law Journal story, Judge Baer in United States v. Murray, 02 CR 1214, apparently concluded that when "resentencing a defendant [pursuant to a Booker remand], a court has the authority to consider what happened before and after the original sentence was imposed." As the article notes, the "proper" considerations at post-Booker resentencings were not directly addressed by the Second Circuit in Crosby (or, for that matter, by SCOTUS in Booker). Filling<br/><br/>(Message over 64 KB, truncated)
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