Vol. 13, No. 29
Covering Cases Published in the Advance Sheets through July 17, 2006

Court Holds NSA Eavesdropping Program Unconstitutional

Computer Searches - A New Standard Adopted

More on "The Booker Mess"

Important Paper on Post-Booker Sentencing

We have posted on our Website an important and highly-recommended memorandum, entitled
"The Continuing Struggle for Fair, Effective and Constitutional Sentencing After United States v. Booker," written by Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders.


U.S. v. [Lonnie] Davis, No. 05-6259 (6th Cir. Aug. 15, 2006) (Judge Moore)
U.S. v. Cage, No. 05-5241 (6th Cir. Aug. 15, 2006) (Judge Batchelder)

Both of these cases dealt with appeals by defendants from sentences that were within the ranges recommended by the Guidelines. As an initial matter, we note that, because the Sixth Circuit has adopted a “rebuttable presumption of reasonableness” for such sentences, we have not yet seen a single case in which a within-Guidelines sentence has been overturned on appeal by the Sixth Circuit.

More significantly, however, while both cases appear to pay lip service to the greater “enhanced discretion” that district courts “enjoy” in fashioning sentences in the post-Booker world, the reality is that such greater discretion is in fact sharply cabined by any one or more of a series of ever-changing targets.

First, the “presumption of reasonableness” refers to the standard of review by the appellate courts - not the standard to be followed by the sentencing courts when imposing sentence. Thus, as Judge Moore wrote in Davis:

“We have made clear ‘that a district court’s job is not to impose a 'reasonable' sentence. Rather, a district court’s mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes’ of [18 U.S.C. §] 3553(a)(2). Reasonableness is the appellate standard of review is judging whether a district court has accomplished its task.”

Under that incongruous scenario, even if a sentencing judge goes out of his way to assure that the sentence he is about to impose is reasonable, and even if the appellate court agrees that, from his perspective, the sentence was reasonable, the sentence can still be overturned on appeal by the appellate court because, in the crazy post-Booker world, even though Booker “empowered district courts, not appellate courts” (see, U.S. v. Buchanan, 449 F.3d 732, 741 (6th Cir. 2006)), only the appellate courts have the power and the right to determine whether a sentence is reasonable - and, in so doing, they don’t even need to consider all of the factors set forth in § 3553(a) (even though the district court was required to consider those factors)!!!!

Second, while the presumption of reasonableness for within-Guidelines makes it almost impossible to prove that such sentences are unreasonable, as a practical matter, the absence of such a standard for sentences that are either above or below the Guidelines’ recommended sentences makes it almost impossible for a defendant to prove that a below-Guidelines sentence was reasonable or that an above Guidelines sentence was unreasonable.

Finally, in exercising their right to determine whether a sentence is reasonable or not, the appellate courts often refer to both “procedural reasonableness” and “substantive reasonableness” - and that gives them the advantage of being able to define those terms according to need. Thus, in Davis, Judge Moore defined “substantive reasonableness” as “the length of the sentence”; while, in U.S. v. Webb, 403 F.3d 373, 385 (6th Cir. 2005), the Sixth Circuit stated that a sentence is “substantively unreasonable” if the district court "select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor"; and in U.S. v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006), the Fourth Circuit said that a sentence is “substantively unreasonable” if the district court “relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission.” In other words, if all else fails, make the key definitions an interchangeable feast!!!

The clearest part of the Cage decision was the dissent by Judge Clay, who unequivocally stated:

“The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert U.S. v. Booker, 543 U.S. 220 (2005), and to make the sentencing Guidelines de facto mandatory. This Court took its first major step in this direction when it purportedly held in U.S. v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), that on appeal, this Circuit would now credit sentences ‘properly calculated under the Guidelines with a rebuttable presumption of reasonableness.’ While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. The majority's holding in this case directly contravenes Booker, 18 U.S.C. § 3553(a), and this Court's prior holdings that district courts are to consider all the § 3553(a) factors in arriving at a sentence sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a).”


U.S. v. [William] Davis, No. 05-3874 (6th Cir. Aug. 14, 2006) (Judge Sutton)

The defendant in this case was indicted in 1999 and convicted in 2002 of two counts of bank fraud arising out of a false financial statement that he had submitted to a bank way back in 1990. He was finally sentenced in 2003 to 33-months in prison, but that sentence was vacated on appeal when the Sixth Circuit held that the district court’s imposition of a sentence under mandatory Guidelines violated U.S. v. Booker. (See, U.S. v. Davis, 397 F.3d 340 (6th Cir. 2005)).

On remand, Judge Walter Rice (S.D.Ohio) resentenced Davis. This time, after carefully applying all the factors listed in 18 U.S.C. § 3553(a), Judge Rice sentenced Davis to one day in prison. He noted, in part, that Davis’ crimes had been committed 14 years earlier; that he was now 70 years old; and that he was no danger to the public and others because he had now retired and was living with his family and grandchildren. He also noted that the defendant's "age and the length of time between the commission of the offenses and the date of sentencing" warranted consideration after Booker even though they were "not proper" to consider as grounds for a downward departure from the guidelines.

The Government, of course, appealed. On appeal, the Sixth Circuit took pains to note that the sentence that was imposed satisfied all of the requirements of “procedural reasonableness” and that it “can fairly be described as a thorough application of the § 3553(a) factors by an experienced and well-regarded district court judge.” Nevertheless, two of the judges then concluded that the sentence did not meet their subjective standards of “substantive reasonableness”; and they vacated the sentence and remanded again for yet another resentencing of the 70-year old defendant. The essence of the majority’s ruling was the following:

“No doubt, the district court retains ample discretion to grant Davis a variance on this record. And it will have an opportunity to do so on remand. But, for the reasons given, even the most animated application of the parsimony requirement--that the district court impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in’ § 3553(a)(2)--cannot justify a one-day sentence in this case. To rule otherwise, we respectfully submit, would intimate that reasonableness review is a theory, not a practice, and would fairly leave litigants wondering what downward (or upward) variances exceed a district court's discretion if a 99.89% downward variance on less-than-extraordinary facts lies within that discretion. Modest though reasonableness review may be, it is not non-existent.”

In response to the majority’s ruling, Judge Keith “vigorously” dissented. He condemned the Sixth Circuit’s predilection for “micromanaging the sentencing process and second guessing the district court’s determination after presiding over the [sentencing] hearings,” with these pungent words:

“I am saddened and distressed by the majority's opinion, which totally disregards the district court's authority to impose a fair and reasonable sentence that is 'sufficient but not greater than necessary' to effectuate the purposes of sentencing. Reversing the district court's sentence is a complete miscarriage of justice. Therefore, I respectfully dissent.

“For years, district court judges have grappled with mandatory sentencing guidelines that constrained their power to impose just sentences. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court granted district courts the power to evaluate the circumstances of each case and make an individualized sentencing determination. Regrettably, the majority's holding, finding Davis's sentence substantively unreasonable, strips the district courts of its power to issue a reasonable sentence in accordance with the now advisory sentencing guidelines. Here, in accordance with Booker, the district court complied with the Supreme Court's mandate. Therefore, I cannot agree with the majority's holding. . . .

“This holding cannot be reconciled with Booker, which instructs the appellate courts to review a sentence for reasonableness regardless of where the sentence falls in relation to the advisory guidelines range. . . . The majority also reduces the evaluation of the district court's sentence to a formulaic assessment of how much the sentence varies from the advisory guideline range to determine whether the defendant's sentence is unreasonable. In engaging in this mechanical assessment, the majority starts this Court down the path of the pre-Booker days where the district courts were bound by an algebraic application of the guidelines. This precedent will inevitably lead to the district courts feeling reluctant to ever impose a sentence below the advisory guideline range for fear of reversal at the appellate level.”

For more critical comments on this decision, see the Sixth Circuit Blog, which noted that this decision “has moved the Court further toward reinstating the old system of mandatory Guidelines.”


U.S. v. Ferguson, No. 05-3998 (6th Cir. Aug. 9, 2006) (Judge Gilman)

In his dissent in U.S. v. Davis, No. 05-3784 (6th Cir. Aug. 14, 2006) (above), Judge Keith aptly noted that: “The current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range [than] over sentences that depart upward from the advisory guideline range.” (Emphasis added.)

Well, in the instant case, the district court doubled the defendant’s sentence from a Guidelines range of 0 to 6 months to a sentence of 12 months in prison, as urged by the Government. The defendant appealed, arguing principally that a sentence which is twice the maximum of the Guidelines range is unreasonable.

Sorry, said the Sixth Circuit, the sentence was both substantively and procedurally reasonable. Without ever really referring to the magnitude of the increase in the instant case, the court described the sentence as a mere six-month increase above the Guidelines range - and then pointed to U.S. v. Matheny, 450 F.3d 633 (6th Cir. 2006), where the court also approved a six-month sentence increase - from a Guidelines range of 24-30 months to a sentence of 36 months.

Then, ignoring that fact that a 100% sentence increase is dramatically different than a 20% sentence increase, the Court blithely concluded:

“The district court . . . did what it was obligated to do by both this court's caselaw and the governing statute -- it followed a congressional command and then ‘exercis[ed] independent judgment in sentencing [a] criminal defendant[ ] within statutory limits.’ . . . Under these circumstances, we cannot say that the court's decision to impose a sentence six months above the advisory Guidelines range was unreasonable.”

Frankly, we doubt that anyone can derive any meaningful sentencing precepts from these four cases. They represent the type of ad hoc, results-oriented, subjective appellate decisions that have come to mark the post-Booker jurisprudence. But they certainly give credence to Judge Young’s complaint, in U.S. v. Kandirakis, 2006 U.S. Dist. LEXIS 53243 (D.Mass. Aug. 1, 2006) (P&J, 07/10/06), that: “ [A]ppellate 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.”


In Brief

Aliens - Rights to Be Free from Excessive Force: Martinez-Aguero v. Gonzalez, No. 05-50472 (5th Cir. Aug. 4, 2006) - Here the Court held that even noncitizens have a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel. The plaintiff, Maria Martinez-Aguero, a citizen of Mexico, who is also an epilectic, filed a lawsuit claiming that she was physically abused during a false arrest by a Border Patrol agent in El Paso, which caused her to have a seizure. The Border Patrol agent, Humberto Gonzalez, argued that, because Martinez-Aguero was denied entry into the United States her rights were limited by the so-called “entry fiction” doctrine. Under that doctrine, he argued that, even though Maria was technically in the United States at the time of her abuse, the protections of the Fourth and Fifth Amendments didn’t apply to her because they have no extraterritorial application. Thus, the miserable Gonzalez claimed that he was entitled to qualified immunity.

In denying Gonzalez the defense of qualified immunity, the Fifth Circuit stated that the “entry fiction” doctrine was limited to immigration and deportation matters. “It does not limit the right of excludable aliens detained within United States territory to humane treatment.” The Court also acknowledged that while there “may be cases in which an alien’s connection with the United States is so tenuous that he cannot reasonably expect the protection of its constitutional guarantees,” it emphasized that this was not such a case. “The nature and duration of Martinez-Aguero’s contacts with the United States . . . are sufficient to confer Fourth Amendment rights. It follows that she may bring a Bivens claim for unlawful arrest and the excessive use of force under the Fourth Amendment.”

Booker - District Courts Have No Power to Depart from 100:1 Crack-Cocaine Sentencing Ratio: U.S. v. Castillo, No. 05-3454-cr (2nd Cir. Aug. 16, 2006) - Joining the First, Fourth, Seventh and Eleventh Circuits, the Second Circuit has now held that district courts “do not have the authority to reject unilaterally the 100:1 [crack-cocaine] sentencing ratio on policy grounds.” For two highly critical and astute commentaries about this ruling see “Second Circuit joins group mandating that crack guidelines are followed” and “Crack reasonableness review should be as easy as 1, 2, 3,” which were posted by Prof. Douglas Berman on his Sentencing Law and Policy Blog on August 16 and 17, 2006.

Child Pornography - Eleventh Circuit Reverses Ruling Which Held Purely Intrastate Possession of Pornography Not Subject to Federal Regulation: U.S. v. Smith, No. 03-13639 (11th Cir. Aug. 11, 2006) - Previously, in U.S. v. Smith, 402 F.3d 1303 (11th Cir. Mar. 18, 2005) (“Smith I”) (P&J, 03/14/05), the Eleventh Circuit held that the defendant’s purely intrastate, non-commercial production and possession of child pornography was not subject to Commerce Clause regulation. Accordingly, the Court reversed the defendant’s convictions for child pornography under 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B), on the grounds that the Government had failed to establish that the defendant’s conduct substantially affected interstate commerce such that it could be validly regulated by Congress.

The Government appealed to the Supreme Court, which remanded for reconsideration in light of its ruling in Gonzalez v. Raich, 545 U.S. 1 (2005), where the Court held 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. On remand, the same panel that decided Smith I reversed itself, stating: “Upon reconsideration, we have determined that, as a result of Raich and our recent decision in U.S. v. Maxwell, 446 F.3d 1210 (11th Cir. 2006) (Maxwell II), we can no longer say that the failure to find 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B) unconstitutional as applied to this case amounted to plain error”; and thus it affirmed the defendant’s convictions.

 


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

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Year to Date
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49
1,513
25,351
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