Vol. 13, Nos. 27 & 28	Covering Cases Published in the Advance Sheets through July 10, 2006

The Current State of Federal Sentencing

• The 141-page Kandirakis decision, written by Judge William Young of the D.Mass., is probably the most significant Federal sentencing decision since the Supreme Court’s conflicted, two-part decision in U.S. v. Booker; and it represents an outstanding (and, at times, a scathing) review and analysis of the current state of Federal sentencing and of what Judge Young referred to as “the constitutionality of functionally mandatory Guidelines.” For example, he calls the guidance received from the appellate courts on what facts are truly relevant to a sentencing hearing “mind-numbingly incoherent.”
  
  

Other Sentencing Cases

• In Mohamed, the Ninth Circuit followed the Seventh Circuit’s lead in holding that “the concept of 'departures' has been rendered obsolete [here “anachronistic”] in the post-Booker world” and has been replaced by an appellate review scheme under which “any deviation from the applicable advisory guidelines range will be viewed as an exercise of the district court's post-Booker discretion and reviewed only for reasonableness” - whatever that means.
  
  
  
• The Hunt decision from the Eleventh Circuit is noted for its candid admission that “Much has been written about the amount of weight to accord the Guidelines in light of Booker, and virtually every position has been adopted by one court or another.” Other than that, the rest of the decision is another example of some of the “mind-numbing incoherence” of the appellate courts on post-Booker sentences.
  
  
  
• The Demaree case from the Seventh Circuit is one of those intriguing sleeper decisions that could have a major impact on the Federal sentencing scene. Writing for the Court, Judge Posner held that pre-Booker ex post facto limits on the application of the most recent guidelines are no longer applicable because the Guidelines are now advisory - at least in theory.
  
  
  
• In Jointer, the Seventh Circuit vacated a below-Guidelines sentence in a crack-cocaine case, despite a thoughtful explanation by the district court as to why the sentence was “reasonable.” In attempting to decipher the Court’s statement that the district court had erred as a matter of law because it followed “neither the statutory language set out by Congress nor the applicable guidelines sections,” Professor Berman bluntly accused the Court of “fabricating stories about the law” in order to clamp down on judicial discretion exercised outside the suggested range of the so-called advisory Guidelines.
  
  

The "Petite Policy" Revisited

• In Handy, Judge Nancy Gertner of the D.Mass. addressed a series of issues stemming from the Government’s desire to re-prosecute the defendant on Federal gun possession charges after he was convicted in a state court on the identical charges, but only sentenced to six months in prison. Based on those facts, Judge Gertner issued an intriguing order in which she directed the parties to submit briefs on three specific dual prosecution issues that derive from the Department of Justice’s so-called “Petite Policy.” Whatever the outcome of this case, it is bound to raise the ire of the Dept. of Justice.
  
  

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U.S. v. Kandirakis, Crim. No. 04-10372-WGY (D.Mass. Aug. 1, 2006) (Judge Young)

One could safely say that this is the most significant Federal sentencing decision since U.S. v. Booker, 543 U.S. 220 (1995). It not only provides an infinitely valuable survey and critique of the current state of Federal sentencing, it helps to analyze Booker from the perspective of its two immediate(and, in the minds of many, its hard-to-reconcile) predecessors, Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). The decision also represents a highly critical (and, at times, scathing) analysis of what Judge Young refers to as the “constitutionality of functionally mandatory guidelines.”

Judge Young started his must-read opus with these prrovocative words:

“For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words 'burden of proof', 'evidence', and 'facts' of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.”

From there, Judge Young traced the history of Booker and its two contradictory majority opinions; the evolving role of the Guidelines - from mandatory, to advisory, and then back to functionally mandatory; and the often overlooked role of the Sixth Amendment in sentencing, with particular emphasis on the disappearing role of juries and the reasonable doubt standard of proof at sentencing.

Judge Young’s contextual analysis of the two conflicting majority decisions in Booker (“Constitutional Booker” by Justice Stevens and “Remedial Booker” by Justice Breyer) is brilliant and filled with a wealth of materials for sentencing hearings. For example, he stated:

“As did the Sentencing Reform Act, Remedial Booker purports to be concerned most with uniformity in criminal sentencing. . . . One wonders, then, how removing the provision that makes the Guidelines mandatory for all judges promotes the goal of uniformity. Justice Scalia noted that it was ‘wonderfully ironic’ that ‘[i]n order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, [Remedial Booker] discarded the provisions that eliminate discretionary sentencing’." (Internal citations omitted).

Judge Young also cited this quotation from a law review article by Judge McConnell:

“As Judge Michael W. McConnell of the Tenth Circuit has noted, the two Booker opinions, ‘taken in tandem, do not get high marks for consistency or coherence. . . . The most striking feature of the Booker decision is that the remedy bears no logical relation to the constitutional violation.’ Michael W. McConnell, The Booker Mess, 83 Denver U. L. Rev. 665, 677 (2006). The constitutional violation of the Guidelines was that judges, rather than juries, found the facts necessary for sentencing. Instead of focusing the remedy on who performed the fact-finding, however, Remedial Booker honed in on the ‘necessity’ of the facts. It purported to make those facts ‘unnecessary’ by making the Guidelines ‘effectively advisory’. As a result, ‘[t]he jury verdict is no more consequential after Booker than it was before". McConnell, supra, at 677. ‘All the things that troubled Sixth Amendment purists about the pre-Booker Guidelines system are unchanged’, including reliance on uncharged and even acquitted conduct. Id.; see Booker, 543 U.S. at 302 (Stevens, J., dissenting in part) ("[T]he Court [in Remedial Booker] has effectively eliminated the very constitutional right Apprendi sought to vindicate.’).”

Judge Young also complained at length that the Remedial Booker decision was nothing but “‘a pragmatic attempt by supporters of the Guidelines system, four of whom dissented from the Stevens majority, to patch together a workable sentencing system as close to the Guidelines as was possible under the circumstances.’ . . . As a result, the Guidelines - and their judge-made factual findings -are still the driving force behind federal sentencing.” However, he also complained that “appellate guidance concerning when it is permissible for a sentencing court to deviate from the suggested Guidelines range, based on what facts, is mind-numbingly incoherent.”

Some of Judge Young’s choicest criticisms were leveled at the First Circuit for a series of convoluted decisions that have, effectively, created a scheme that “violates the rule of Constitutional Booker.” Thus, while the First Circuit argues that “making the guidelines ‘presumptive’ or ‘per se reasonable’ does not make them mandatory,” Judge Young responded by stating: “By organizing sentencing decisions around the Guidelines and only focusing on the question of whether a non-Guidelines sentence is reasonable, courts ‘will effectively give the guidelines a controlling weight and a presumptive validity that is difficult to defend under the constitutional ruling in Booker’."

Another extremely important aspect of this decision is its discussion of the reasonable doubt standard at sentencing (pages 79 to 109). Judge Young noted that, pre-Booker, courts applied the preponderance standard out of deference to the Guidelines’ suggestion in U.S.S.G. § 6A1.3 that the Commission ‘believes’ that standard meets due process. Judge Young found that Justice Stevens’ majority Booker opinion "casts significant constitutional doubt on such blind adherence"; and he cited Justices Scalia’s statement in his partial dissent: "[T]he Commission’s view of what is ‘better’ is no longer authoritative, and district judges are free to disagree – as are appellate judges."

Starting with the premise that “the presumption of innocence is guarded in large measure by the standard of proof necessary to overcome it,” Judge Young persuasively argued that:

“'It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty'." (Internal citations omitted).

In the end, while Judge Young acknowledged that many of his arguments had been rejected by the First Circuit, he also argued:

“With utmost respect, therefore, it is the duty of this trial judge to point out that Justice Breyer and those who agree with him are simply wrong to assume that the American jury cannot handle these issues. . . . In short, juries can and should perform Guidelines enhancement fact-finding, as a matter both of practice and of constitutional procedure."

Because no summary of a decision this important can do justice to the author, we urge all defense attorneys to print out - and study - this remarkable sentencing decision. And because, as Judge Young noted, two of the Justices who supported the highly questionable Booker Remedial decision are no longer on the Supreme Court, it may be wise to start preserving for future appeals some of the very issues that Judge Young has described, even though those issues may appear to be foreclosed by the current march of the Circuit courts to limit the reach of the Apprendi/Blakely/Booker line of cases.

The significance of Judge Young’s prophetic statement that the guidance from the appellate courts on what constitutes a “reasonable” sentence has been “mind-numbingly incoherent” is borne out by the gobbledegook sanctimoniously intoned by a number of the other Circuits is this week’s listing of significant Booker cases.

U.S. v. Mohamed, No. 05-50253 (9th Cir. Aug. 11, 2006) (Judge Fletcher)

This is another case in which an appellate court affirmed a sentence way above the applicable Guideline range - consistent with the now well-established trend for approving such upward “departures.” Apart from that, the noteworthy aspect of this decision is the Court’s explanation of its “approach to reviewing post-Booker sentences” - an explanation that gives further credence to Judge Young’s comment in U.S. v. Kandirakis that guidance from the appellate courts on what constitutes a “reasonable” sentence is sometimes “mind-numbingly incoherent.” (Emphasis added).

Here, the Ninth Circuit first agreed with the Seventh Circuit’s conclusion, in U.S. v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005) that “the concept of 'departures' has been rendered obsolete in the post-Booker world." Then, by way of explanation, the Court stated:

“We think the better view is to treat the scheme of downward and upward ‘departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence. . . . [W]e side with the Seventh Circuit and we elect to review the district court's application of the advisory sentencing guidelines only insofar as they do not involve departures. To the extent that a district court has framed its analysis in terms of a downward or upward departure, we will treat such so-called departures as an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range. In other words, any post-Booker decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.

“We do not mean to suggest, however, that the pre-Booker system of departures should be ignored. That system reflected the Sentencing Commission's judgment about what types of considerations should or should not take a case out of the "heartland of typical cases" such that an extraguidelines sentence would be justified. If a district court's reasons for exercising its post-Booker discretion coincide with the factors allowed or encouraged under the pre-Booker system of departures, such overlap may suggest that the sentencing decision was reasonable. Our holding today does not preclude consultation of the system of departures that existed under the mandatory regime, either by the district court or by this court. Rather, out of a recognition that the concept of formal departures has become anachronistic, we hold that any deviation from the applicable advisory guidelines range will be viewed as an exercise of the district court's post-Booker discretion and reviewed only for reasonableness.” (Internal citations omitted.)

You decide: mind-numbing incoherence - or crystal-clear guidance?

U.S. v. Hunt, No. 05-11671 (11th Cir. Aug. 10, 2006) (Judge Tjoflat)

Jermaine Hunt was arrested and charged with possession and intent to distribute 22 grams of crack cocaine. He subsequently pled guilty to the facts contained in his indictment, without any plea agreement. Based primarily on statements he made to the authorities after his arrest, Hunt’s presentence report held that he was accountable for 248 grams of crack. After he was sentences to 135 months in prison, he appealed his sentence, challenging only the sentencing procedures used by the district court. He did not claim that his sentence was unreasonable.

In affirming Hunt’s sentence, the Eleventh Circuit prattled on at length about the factors that a sentencing court should consider in the post-Booker era - and we submit that the Court’s words of wisdom and guidance are typical of the type of advice that has been emanating from our appellate courts since Booker. Just consider these “mind-numbing” statements:

“Much has been written about the amount of weight to accord the Guidelines in light of Booker, and virtually every position has been adopted by one court or another. (Emphasis added) . . .

“We do not believe that any across-the-board prescription regarding the appropriate deference to give the Guidelines is in order. Booker restored to district courts a measure of discretion that the mandatory Guidelines had removed. This discretion is bounded, of course, by Congress's mandate to consider the factors in section 3553(a), one of which, subsection four, is the Sentencing Guidelines. There are many reasons a district court may choose to follow the Guidelines in a particular case — namely that the Guidelines are an accumulation of knowledge and experience and were promulgated over time by the Sentencing Commission, an agency instructed to consider the section 3553(a) factors. The Guidelines, moreover, are an indispensable tool in helping courts achieve Congress's mandate to consider ‘the need to avoid unwarranted sentence disparities’ among similarly situated defendants. 18 U.S.C. § 3553(a)(6).

“There are, however, many instances were the Guidelines range will not yield a reasonable sentence. If Booker is to mean anything, it must be that district courts are obligated to impose a reasonable sentence, regardless of the Guidelines range, so long as the Guidelines have been considered. Thus, a district court's determination that the Guidelines range fashions a reasonable sentence necessarily must be a case-by-case determination. In some cases it may be appropriate to defer to the Guidelines; in others, not. So long as the district court considers the Guidelines, we do not believe it is appropriate to dictate a ‘strength’ of consideration applicable in every case.

“Nor do we find a presumption to be useful in this context. Presumptions are burden-shifting tools, and operate effectively where the party against whom the presumption operates is better situated to come forward with evidence. To say that the Guidelines are ‘presumptively’ reasonable is to charge the defendant with the responsibility of establishing that the Guidelines range does not fulfill the remaining section 3553(a) factors in a particular case. We agree that, in this context, there is some evidence the defendant is more likely to possess. Other evidence, however, might better be asked of the Government — a repeat player in the criminal justice arena. We therefore see no basis for ascribing a presumption one way or the other. Rather, the Guidelines are to serve as a starting point for consideration as to whether a given sentence is ‘reasonable’ in view of the entirety of section 3553(a). Whether, after consideration of section 3553(a) in its entirety, a court finds the Guidelines to be compelling is a fact-specific judgment that we neither mandate nor foreclose.

“In sum, we hold that a district court may determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination is made with reference to the remaining section 3553(a) factors that the court must also consider in calculating the defendant's sentence.”

In the end, the Eleventh Circuit’s predilection for determining, on a case-by-case basis, whether a sentence meets the mandates of Booker can best be seen from this partial (but representative) listing of recent rulings from that Circuit, which seem to confirm that the Circuit does indeed eschew any ascertainable formulas that may be of help to the lower courts:

Cases affirming an above-Guidelines sentence as reasonable:
U.S. v. Valmor, 451 F.3d 744 (11th Cir. June 6, 2006)
U.S. v. Eldick, 443 F.3d 783 (11th Cir. March 22, 2006)

Cases reversing a below-Guidelines sentence as unreasonable:
U.S. v. Martin, 2006 U.S. App. LEXIS 17261 (11th Cir. July 11, 2006) (Docket No. 05-16645)
U.S. v. Crisp, 2006 U.S. App. LEXIS 16969 (11th Cir. July 7, 2006) (Docket No. 05-12394)
U.S. v. McVay, 447 F.3d 1348 (11th Cir. May 5, 2006)

Cases affirming a below-Guidelines sentence as reasonable:
U.S. v. Gray, 2006 U.S. App. LEXIS 16196 (11th Cir. June 28, 2006) (Docket No. 05-15209)
U.S. v. Halsema, 2006 U.S. App. LEXIS 11563 (11th Cir. June 13, 2006) (Docket No. 05-13016)

The Emerging Debate Over President Bush's Use of Signing Statements

The debate over President Bush’s growing use of so-called “Signing Statements” is finally coming to the attention of the American public. That debate has been inspired in large part by news articles which have reported that the President has issued numerous signing statements since he first assumed office claiming he has the authority to disobey or disregard more than 750 laws enacted since he became President. Because of the importance of that debate, we note the following resources for a more in-depth analysis of the problems behind these signing statements:

• American Bar Association Report, dated August 2006, prepared by the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, Neal R. Sonnett, Chair;

• “Read the Fine Print,” a New York Times Editorial, July 25, 2006; and

• “Untangling the Debate on Signing Statements,” by David Barron (Harvard Law School), Walter Dellinger (Duke Law School), Dawn Johnsen (Indiana School of Law, Bloomington), Neil Kinkopf (Georgia State Law School), Marty Lederman (Georgetown Universty Law Center), Chris Schroeder (Duke Law School), Richard Shiffrin (University of the Pacific McGeorge School of Law) and Michael Small (Akin, Gump, Strauus, Hauer & Feld, LLP) (all of whom have served in the Office of Legal Counsel), as posted on the Georgetown Law Faculty Blog, on July 31, 2006.

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