Vol. 13, Nos 33 & 34	Covering Cases Published in the Advance Sheets through Aug. 21, 2006

Voluntary Waiver of Right to Appeal Capital Punishment Violates the Eighth Amendment

• In Comer, a divided panel from the Ninth Circuit held that, even though the petitioner had “competently and voluntarily waived” his right to appeal his death sentence, to uphold that waiver would be to permit the State to execute him “without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution.”
  
  

Conviction Vacated Due to Restrictions Placed on Cross-Examination of Police Officer

• In Jimenez, the Fifth Circuit vacated a drug conviction after finding that limits placed on the cross-examination of the prosecution’s chief witness, a police officer, to order to prevent improper disclosure of “police tactics,” effectively violated the defendant his Confrontation Clause rights and denied him the ability to test the prosecution’s case in a meaningful way.
  
  
  

Rare Finding of a Batson Violation

• In a case that emphasizes the enormous and time-consuming difficulties in proving a Batson violation, the Ninth Circuit, in a narrowly split en banc decision in Kesser, vacated an 11-year old murder conviction after finding that the state prosecutor had improperly excluded four jurors from the panel on the basis of race, in clear violation of the rules established in Batson v. Kentucky.
  
  
  

The Booker "Sea-Change" That Has Become a Small and Muddy Puddle

• From the moment the Supreme Court released its decision in U.S. v. Booker, commentators and judges alike predicted it would result in a sea-change in the administration of the Federal Sentencing Guidelines. However, since then, the appellate courts have steadily chipped away at the central holdings of that case: that the Guidelines were now advisory only; that sentencing judges would be accorded great discretion in the imposition of sentences in federal cases; and that henceforth sentencing judges would be required to impose sentences “sufficient, but not greater than necessary, to comply with” all of the purposes set forth in 18 U.S.C. § 3553(a)(2). In fact, as we have repeatedly observed, the appellate courts have now pretty much concluded that the advisory Guidelines are really de facto mandatory Guidelines; that sentencing judges have great discretion - but only if they stay within the Guideline ranges; and that, while sentencing courts must pay lip service to the various factors listed in § 3553(a), the only one that really counts is § 3553(a)(4) - i.e., rigid adherence to the sentencing range specified in the so-called advisory Guidelines.

Snippets from a collection of recent appellate decisions continue to confirm that Booker has not created any sea-change; in fact, the changes wrought by that decision are more akin to a small and muddy puddle. Thus, see Judge Posner’s rulings in Reuter and Gonzalez; the Eleventh Circuit’s ruling in Arevala-Juarez; and the Eighth Circuit’s ruling in Likens, where Judge Bright, in dissent, bemoaned the fact that, while discretion in sentencing “belongs to the district court,” it is “a prerogative that this court will not recognize in many, perhaps too many, cases.”

U.S. v. Gonzalez, No. 05-2555 (7th Cir. Sept. 11, 2006) (Judge Posner)
U.S. v. Reuter, No. 05-4503 (7th Cir. Sept. 19, 2006) (Judge Posner)

The New York Sun once called Judge Posner the leading candidate for the title “World's Foremost Authority.” (See, www.law.uchicago.edu/news/posner-authority.html)). Well, apparently, Judge Posner must believe that his coronation as the World’s Foremost Authority vests him with certain special prerogatives, such as the right to carve out legal positions whether or not they find support in the law.

Both of these cases are of that ilk. Gonzalez dealt with an appeal by a defendant who received a 23-year sentence for a marijuana violation. He argued that, even though his sentence fell within the Guideline range, it was “unreasonably wrong.”

Such an argument is perfectly proper in the post-Booker world. As Justice Breyer emphasized in his Booker Remedial Decision:

“Moreover, despite the absence of [the now-excised] § 3553(b)(1), the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a)). . . . Section 3553(a) . . . sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts . . . in determining whether a sentence is unreasonable."

Nevertheless, Judge Posner was offended by the idea that a sentence within the Guideline range could be challenged as unreasonable - and so he decided to clamp down on such appeals. He slammed the appeal as merely “routine” and then, with chilling effect, he virtually accused the defendant of “wast[ing]” his time and the court’s by filing a “frivolous appeal.”

With all due respect to the World’s Foremost Authority, a 23-year sentence for marijuana is a long time; and it does not take a great leap of faith to argue that such a sentence may be per se unreasonable. To presumptively ostracize such appeals is both wrong and contrary to the law.

Reuter is another case where wishful thinking seemed to control the outcome of the court’s ruling. This case dealt with the sentence imposed on a defendant who pled guilty to a conspiracy to distribute drugs. The maximum guidelines sentence for his offense would have been 105 months in prison had the judge not found at the sentencing hearing that the defendant committed a murder in the course of the conspiracy. That finding raised Reuter's guidelines range to 360 to 480 months; and the judge sentenced him to 360 months.

Reuter’s counsel filed an Ander’s brief, arguing that there were no nonfrivolous grounds for an appeal. However, counsel did allude to an argument that the sentencing judge was required to find by "clear and convincing" evidence, not a mere preponderance, that Reuter had committed the murder.

In addressing that issue, Judge Posner acknowledged that some courts had either suggested or held that a higher standard of proof might be required in cases where a defendant’s sentence is dramatically increased through the use of relevant conduct found by the district court; and he specifically cited such a holding from the Third Circuit in U.S. v. Kikumura, 918 F.2d 1084, 1100-01 (3rd Cir. 1990), where that court held that “proof by a clear and convincing evidence is required when a finding will so lengthen the defendant's sentence as to make it a case of the tail (the judge's finding at the sentencing hearing) wagging the dog (the sentence that the evidence at trial, or as here the evidence supporting the guilty plea, would have warranted).”

However, Judge Posner then quickly asserted that the debate over a higher standard of proof in such cases had been “rendered academic” by U.S. v. Booker - and he then continued: “as the Third Circuit, overruling Kikumura, has now held.” (Emphasis added, citing U.S. v. Grier, 449 F.3d 558, 570 (3d Cir. 2006)).

Unfortunately, 60 days before Judge Posner’s decision in Reuter, the Third Circuit had vacated and withdrawn its decision in Grier when it agreed to rehear that case en banc. Thus, with all due respect to Judge Posner, we find it a bit strange that a judge of his reputation would cite, as a controlling precedent, a case that has been vacated two months earlier. In addition, it would appear that the debate may not yet be over on the issue of whether a higher standard of proof may be required in cases where the use of judge-found relevant conduct distorts a defendant’s sentence to an unusual degree. We wonder how many cases will cite Reuter and Judge Posner without realizing that the central thesis for his ruling was erroneous?

U.S. v. Arevalo-Juarez, No. 05-16313 (11th Cir. Sept. 15, 2006) (Judge Marcus)

The defendant in this case pled guilty to a charge of unlawful reentry into the United States after removal following a felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b). His Guideline sentencing range was 46 to 57 months in prison; but the district court departed downward and imposed a sentence of 30 months, explaining:

“[W]ithout this adjustment there will be a disparity in sentencing between this defendant and like defendants who are sentenced in border states where the Attorney General of the United States has authorized early disposition or fast-track programs. In this Court's opinion it should not make any difference in what state you committed the offense; it should be what the offense that you committed was compared to the offense committed by other defendants who might commit those offenses within fast-track programs.”

The Government objected to the 30-month sentence and appealed - as it does in virtually every case involving a below-Guidelines sentence. The Eleventh Circuit reversed - as it has done in virtually every case involving a below-Guidelines sentence since Booker. Citing earlier precedent from the Eleventh Circuit, the Court stated:

“[I]t was impermissible for the district court to consider disparities associated with early disposition programs in imposing Arevalo-Juarez's sentence, because such disparities are not ‘unwarranted sentencing disparities’ for the purposes of § 3553(a)(6). . . . A fast-track guidelines reduction was specifically authorized by Congress because of the perceived unique and pressing immigration problems in certain districts. . . . Plainly, Congress contemplated that discrepancies would arise because it structured the law the way it did.”

What was different about this case was Judge Wilson’s concurring opinion. He noted a flaw in the majority’s reasoning that is common to many post-Booker appeals: when an appellate court wants to disapprove a downward variance, it often does so without even addressing the issue of the reasonableness of the sentence. Thus, as Judge Wilson explained:

“I write separately to emphasize that we make no determination as to whether Arevalo-Juarez's thirty-month sentence is reasonable in this case. After Booker, the ultimate determination in reviewing a sentence on appeal is reasonableness. Sentencing courts are free to depart from the advisory guidelines range so long as the sentence is reasonable based on a ‘proper consideration’ of the section 3553(a) factors. Here we make no determination as to the reasonableness of Arevalo-Juarez's sentence, rather we find that the trial court based the sentence on an improper consideration by downward departing solely on the basis of the fast-track disparity.”

U.S. v. Likens, No. 05-3917 (8th Cir. Sept. 22, 2006) (Judge Wollman)

The defendant in this case pled guilty to possession of a gun by a felon, and certain related crimes. His Guideline sentencing range was 15 to 21 months. However, after carefully reviewing a number of sentencing factors, the district court (Judge Pratt of the S.D.Iowa) concluded that, because the defendant’s conduct in this case was “entirely linked” to his substance abuse and mental health problems, a fair and just sentence would be three year’s probation, conditioned upon the defendant’s participation in a substance abuse treatment and testing program.

In fact Judge Pratt stated: “Indeed, sending a person with congestive heart failure, a close family support system, and in his fifties would promote not respect, but likely derision for the law.”

The Government, of course, appealed; and the Eighth Circuit, of course, reversed, stating:

“Our review of the record and the district court's analysis of the § 3553(a) factors does not reveal the existence of the type of extraordinary circumstances necessary to justify such a reduction. Instead, it appears that the district court failed to consider important factors, gave inappropriate weight to irrelevant factors, and committed clear errors of judgment with respect to some relevant factors.”

What sets this case apart from the seemingly routine Eighth Circuit rejection of virtually every below-Guidelines sentence, was the pointed and persuasive dissent of Judge Bright, which stated in part:

“The majority's determination that the district judge erred when sentencing Mr. Likens to probation serves as yet another example of the upside down world of sentencing in the federal courts. In this present case, the district judge determined that probation is right and just given all the circumstances. That was his reasoned judgment based on his significant experience and consideration. n1 To reverse this exercise of discretion in such a close case seems wrong.

“There is nothing abusive about the exercise of reason simply because it is also an exercise of compassion. The majority's opinion reads as if sentencing Mr. Likens to probation essentially would leave him unpunished. This is hardly the case; three years' probation would still serve to significantly curtail Mr. Likens's mobility, activities, drug-use, and personal freedom while sparing the citizens of this country the expense of incarcerating a person in poor health who is no danger to society. Incarceration is not the only, and indeed not even always the best, means of punishing or deterring crime.

“n1. In his tenure as a federal district judge, Judge Pratt has sentenced approximately nine hundred ninety offenders. We have reviewed only a minuscule number of those cases. Judge Pratt has had the experience, which we have not, to decide the fate of more than nine hundred real people, all of whom he has looked in the eye when imposing a sentence.

The Legalization of Torture

In what seems to have become the hallmark of modern day Congressional legislation, a small group of insiders is once again on the verge of ramming into law a major piece of legislation that will have a permanent and damaging effect on many aspects of fundamental human rights in America. The legislation deals with the creation of military commissions to try many of the 14,000 alleged terrorists held in U.S. controlled prisons throughout the world. (See, “14,000 U.S. detainees sit in ‘war on terror’ legal limbo,” by Patrick Quinn, Seattle-Times, Sept. 18, 2006.)

Sadly, as is also too often the case, most members of Congress have no idea what the legislation really does. (See, “Congress in dark on terror program,” by Rick Klein, Boston Globe, Sept. 23, 2006.) The proponents of the new legislation either openly pretend that it will have no impact on the constitutional rights of Americans since it only deals with “terrorists” - or they are terrified to oppose a law with the alluring name of the “Bringing Terrorists to Justice Act” for fear of being labeled “soft on terror” in this election year

Last week, after a much-publicized “debate” over morality and the rule of law, three Senators - John Warner, John McCain and Lindsay Graham - proudly announced that justice had prevailed and that they had won a landmark victory that would preserve America’s high moral standing and would prevent President Bush from unilaterally redefining the Geneva Conventions.

Well, those facetious assurances were nothing but unmitigated face-saving poppycock!!!

In fact, Senators Warner, McCain and Graham got totally out-snookered by an Administration desperately intent on limiting Republican losses in the forthcoming elections and on protecting its backside from prosecution should the Republicans lose. As editorials from the Washington Post (“The Abuse Can Continue”) and The New York Times (“A Bad Bargain”) have made clear, the military commissions legislation:

• would not prevent the CIA from “rendering” alleged terrorists to secret prisons far removed from the oversight of the U.S. courts, where torture by foreign Governments is both routine and expected;
  
  
• would not prevent the CIA from using what the President has euphemistically described as “alternative interrogation techniques” (a term which the Administration has adamantly refused to define);
  
  
• would not require that all evidence be shown to the alleged terrorists at their military trials;
  
  
• would not permit the detainees to appeal the conditions of their imprisonment to the U.S. courts (thus denying any effective checks and balances over an Administration program that has repeatedly imprisoned the wrong people. (See, e.g., “Measures Seek to Restrict Detainees’ Access to Courts,” Neil A. Lewis and Kate Zernike, The New York Times, Sept. 21, 2006); and
  
  
• would totally exonerate the CIA interrogators (and the officials who condoned, if not mandated, their unlawful conduct) from any lawsuits in American courts for past crimes that no one dares to describe or speak about.

While much has already been written about these new legislative proposals, Prof. Jack M. Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, recently observed on his Blog that this new legislation “means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally -- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally -- because they have been abused or tortured or subjected to one of the Administration's ‘alternative sets of procedures’ -- a.k.a. torture lite.”

For more on this shameful episode see “Thoughts on the ‘Bringing Terrorists to Justice Act of 2006',” by John Dean, as published on FindLaw’s Writ on Sept. 22, 2006. And see also the numerous articles we have posted on our Anti-Terrorism Bulletin Board at fedcrimlaw.com/members/.

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