Vol. 12, No. 11
Covering Cases Published in the Advance Sheets through Mar. 14, 2005

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Booker

Supreme Court

The Worrisome State of Concurrent Sentencing Under Federal and State Law

Drug Conspiracy Conviction Vacated Due to Insufficient Evidence


Booker Boxscore
Past Week's New Decisions -  69 Total Since Jan. 12, 2005 -  550

U.S. v. Booker - Update

The number of new lower court decisions interpreting the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005) continues to rise, averaging nearly 50 new cases each week; and we continue to post all the significant new decisions, listed alphabetically by Circuit on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/. There are also a number of excellent resources that summarize the most significant Booker rulings, including a 55-page report entitled “Selected Post-Booker Decisions” [through March 16, 2005], prepared by the Office of the General Counsel of the U.S. Sentencing Commission; and a 64-page Outline of Post-Booker Decisions [through April 3, 2005], prepared by Frances H. Pratt, the Research and Writing Attorney of the Federal Public Defender’s Office in Alexandria, Va.

Clearly, the most ambitious new Booker case of the past week was the Tenth Circuit’s long-awaited and rambling 82-page, en banc opus in U.S. v. Gonzalez-Huerta, 2005 U.S. App. LEXIS 5705 (10th Cir. April 8, 2005), which produced a total of six separate opinions (one for the majority; three concurrences; one partial concurrence/partial dissent; and one outright dissent). Because of the number of separate opinions and the broad range of topics discussed, it is impossible to ascribe any simple summary to the Gonzalez-Huerta ruling.

Gonzalez-Huerta will however be cited for its extended discussion of the four factors that are used to determine whether a claimed Booker error constitutes “plain error.” It is now well settled that, to find plain error, there must be (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. However, in the context of Booker errors, the Circuits have taken different approaches particularly regarding the third prong - namely whether the Booker error at issue was deemed to have affected the defendants’s substantial rights. As noted in the 02/14/05 issue of P&J, the Circuits have fallen into three general camps on that issue as follows:

• The ‘defendant must prove’ plain error standard. The 1st, 5th and 11th Circuits [now joined by the 10th Circuit through its decision in Gonzalez-Huerta] 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 [now joined by the D.C. Circuit through its decision in U.S. v. Coles (see below)] 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; and

• 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” [although the 9th Circuit’s ruling on that issue in U.S. v. Ameline has now been vacated and the case has been reargued before the en banc Court].

As noted above, the Tenth Circuit in Gonzalez-Huerta appears to have embraced the rigorous "defendant must prove prejudice" standard; but the outcome of that case ultimately rested on the fourth prong of the plain error analysis, because the majority ultimately concluded, based on the facts of the case before it, "that the District Court's mandatory application of the Guidelines was not 'particularly egregious' or a 'miscarriage of justice.'"

Perhaps the most graphic example of the difficulties of putting tags on Gonzalez-Huerta can be seen from the judges’ own disputes about key elements of the Court’s ruling, as evidenced by the first paragraph of Judge Ebel's concurring opinion, in which he wrote:

‘I agree with the majority's decision to affirm Gonzalez-Huerta's sentence under the fourth prong of the Olano plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion. However, I disagree with the majority's analysis and conclusion reached under the third prong of the Olano plain-error analysis (Maj. op. sections IIC), and accordingly I do not join those sections of the majority opinion. Regarding the prejudice-prong analysis, I believe that Judge Briscoe got it right, and accordingly, I join Section IV of her concurrence. Regarding the fourth prong of the Olano plain-error analysis, as noted above, I join Section IIE of the majority opinion. I join Part II of Judge Hartz's concurrence. Finally, I add this concurring opinion to offer some additional analysis applicable to the fourth-prong analysis.”

In U.S. v. Coles, 2005 U.S. App. LEXIS 5678 (D.C. Cir. April 8, 2005), the D.C. Circuit became the third Circuit Court to adopt the "middle" position of "let's ask when in doubt" plain-error standard when deciding whether to remand a case based on a claimed Booker error. In that brief per curiam decision, the Court succinctly stated:

"This case raises an important issue left open by the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), concerning the application of the plain-error doctrine to appeals from sentences rendered under the Federal Sentencing Guidelines before the Supreme Court ruled that they are advisory rather than mandatory. In addressing this issue, we align ourselves generally with the decisions of the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and the Seventh Circuit in United States v. Paladino, No. 03- 2296, 2005 WL 435430 (7th Cir. Feb. 25, 2005), reh'g en banc denied, id. (7th Cir. Feb. 25, 2005), and most particularly with the approach adopted by the Seventh Circuit. Because the record is insufficient for us to determine with confidence whether the defendant suffered prejudice from the Booker error in this case, we hereby remand the record to the District Court so that it may determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken place under the post-Booker sentencing regime."

In U.S. v. Webb, 2005 U.S. App. LEXIS 5420 (6th Cir. Apr. 6, 2005), the Sixth Circuit included a lengthy discussion on the factors that should be considered when seeking to determine whether a sentence imposed by the district court met the new Booker standard of reasonableness. While the Court declined to set out a rigid definition of "reasonable" or specific procedures that a district judge must employ, it did suggest that a sentence would be deemed unreasonable if the district court failed to consider the applicable guidelines range or other factors listed under 18 U.S.C. 3553(a). However, of particular significance, the Court also noted in Footnote 9 that a Guideline sentence is not per se reasonable. The Court stated: "While we decline to indicate what weight the district courts must give to the appropriate Guidelines range, or any other Section 3553(a) factor, we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of 'reasonableness'. . . but is also inconsistent with the Supreme Court's decision in Booker, as such a standard 'would effectively re-institute mandatory adherence to the Guidelines'."

Finally, in Guzman v. U.S., 2005 U.S. App. LEXIS 5700 (2nd Cir. April 8, 2005), the Second Circuit ruled that Booker does not apply to any cases that became final before January 12, 2005, the day Booker was decided. The Court reasoned that Booker was a "new" rule (i.e., it was not "dictated by" either Apprendi or Blakely); (2) it was a procedural - rather than substantive - rule; and (3) it was not within the "watershed" exception to Teague v. Lane’s bar against retroactive application of a new procedural rule to cases that became final before the rule was announced. In so ruling, the Second Circuit joined with similar rulings from the Sixth, Seventh, Tenth and Eleventh Circuits - and we are not aware of any Federal cases that have yet held that Booker is available for use on collateral appeals.


Johnson v. U.S., No. 03-9685 (U.S. Sup. Ct. 04/04/05) (Justice Souter)

In this case, the Supreme Court has attempted to resolve a Circuit split regarding an obscure and highly technical issue regarding the strict one-year statute of limitations that Congress imposed on habeas filings in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The precise issue before the Court in this case was “when the 1-year statute of limitations in 28 U. S. C. §2255, ¶6(4), begins to run in a case of a prisoner’s collateral attack on his federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated.”

Under § 2255, when federal prisoners petition for a writ of habeas corpus challenging their sentence, the one-year limitations period begins to run on the latest of four dates, one of which is “the date on which the facts supporting the [prisoner’s] claim or claims could have been discovered through the exercise of due diligence.” The Supreme Court granted cert to decide whether, when the prisoner is challenging an increased (or “enhanced”) sentence that was based on prior state convictions, a state court order vacating those convictions is a “fact” that supports the prisoner’s claim and thus postpones the start date of the statute of limitations.

By a vote of 5-to-4, the Court held that the period begins when a petitioner receives notice of the order vacating the prior conviction, provided that he has sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced sentence. However, the Court also ruled that a petitioner can take advantage of this rule only if he has sought vacatur of his state conviction with due diligence after the district court has entered judgment in the federal case. Because the petitioner, Robert Johnson, waited more than 3 years after entry of judgment in the federal case to file a motion in state court to vacate the predicate convictions, and proffered no excuse for the delay apart from his status as a pro se litigant, the Court concluded that "Johnson fell far short of reasonable diligence in challenging the state conviction" and thus that his § 2255 was untimely.

Writing for five Justices, Justice Souter worried that Johnson’s proposal would undermine AEDPA’s overriding purpose of finality. Prisoners, he wrote, “might wait a long time” before challenging their past convictions, since they would have a year to file in federal court “no matter how long [they] may have slumbered before starting the successful [state] proceeding.” Souter thus found that the statute’s “due diligence” language required prisoners to act “diligently” not by filing their habeas petition immediately after the state court ruling, but by taking “prompt action” as soon as they realize that their prior convictions might affect a future sentence. Prisoners should recognize their interest in overturning prior convictions when they are convicted in federal court, and because Johnson sought state court relief three years after his federal conviction, he did not act diligently. His federal habeas petition was therefore untimely.

Justice Kennedy dissented, joined by the very odd line-up of Justices Stevens, Scalia, and Ginsburg. The dissent agreed with the majority that AEDPA's one-year clock should begin running as of the date that petitioner receives notice of the state court order vacating the state conviction, but rejected the additional requirement of due diligence in seeking the state remedy. The majority’s due diligence rule, Kennedy wrote, was inconsistent with the statute and “unnecessary,” since most states have their own time limits on vacating prior convictions. The rule might also “allow for the same delay it seeks to avoid” and might force already-strapped defense attorneys to “divert scarce resources” from trial and appellate duties in order to challenge prior convictions.


Quote of the Week

In Hayes v. Brown, No. 99-99030 (9th Cir. Mar. 7. 2005), a majority of an en banc Court held that the petitioner was entitled to habeas relief because of the state prosecutor’s "knowing presentation of false evidence and failure to correct the record" had violated the petitioner's due process rights. (One would have though that was an obvious ruling - but four Judges actually dissented.) In its decision, the majority cited a passage from another case which eloquently explained the evils of such contrived convictions:

“Such false testimony and false evidence corrupts the criminal justice system and makes a mockery out of its constitutional goals and objectives. . . . It is just as constitutionally unacceptable for the government to put a guilty person in prison on the basis of false evidence as it is to have an innocent person suffer the same fate.

“The authentic majesty in our Constitution derives in large measure from the rule of law -- principle and process instead of person. Conceived in the shadow of an abusive and unanswerable tyrant who rejected all authority save his own, our ancestors wisely birthed a government not of leaders, but of servants of the law. Nowhere in the Constitution or in the Declaration of Independence, nor for that matter in the Federalist or in any other writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oath-beholden servant of the law to look the other way when confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction in court.” Judge Trott in Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1124-25 (9th Cir. 2001).


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

td>
Court
This Week
Year to Date
Since 1996
Courts of Appeal
44
472
21,660
District Courts
28
285
12,099

 


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