Vol. 13, Nos. 39 & 40
Covering Cases Published in the Advance Sheets through Oct. 2, 2006

Supreme Court to Rule on Booker Reasonableness Issues

The Importance of Objecting to Errors in a Pre-Sentence Report

Constructive Possession (and Entrapment) Under the Felon-in-Possession Statute

Gang Affiliation Held Insufficient to Extend the Scope of a Traffic Stop Search


Drug Convictions Reversed Due to the Admission of Improper Bolstering Evidence


Claiborne v. U.S., No. 06-5618 (U.S. Sup. Ct. Nov. 3, 2006) (Per Curiam)
Rita v. U.S., No. 06-5754 (U.S. Sup. Ct. Nov. 3, 2006) (Per Curiam)

On November 3, 2006, the Supreme Court granted certiorari in two cases involved in the ongoing debate about the parameters of the new appellate standard of review called for by U.S. v. Booker. The two lower court decisions were U.S. v. Claiborne, 439 F.3d 479 (8th Cir. Feb. 27, 2006) and U.S. v. Rita, 177 Fed. Appx. 357 (4th Cir. May 1, 2006) (unpublished).

In Claiborne, the defendant, a first time offender, was convicted of distributing a small amount of crack cocaine. Although his Guideline sentencing range was 37 to 46 months, he was sentenced to 15 months in prison. The Government appealed that sentence as unreasonable under 18 U.S.C. § 3553(a); and the Eighth Circuit agreed and remanded for a new sentencing. The Circuit Court noted that the 15 month sentence represented a sixty percent downward variance; and it stated that “[a]n extraordinary reduction must be supported by extraordinary circumstances.” The Court also observed that a sentence within the Guideline range is presumed to be reasonable.

In granting certiorari in that case, the Supreme Court posed two questions:

The Rita case involved a defendant, Victor A. Rita, who was convicted of giving false testimony to a grand jury and obstructing justice in an investigation of illegal trafficking in machine gun kits. After his conviction on five counts, he was sentenced to 33 months on all counts -- which was within the guideline range. Rita appealed the sentence on the grounds that it was unreasonable, particularly in light of his poor health and his unblemished record of federal service, both as a marine and in two civilian agencies. In its brief unpublished decision, the Fourth Circuit stated that "a sentence imposed 'within the properly calculated Guidelines range . . . is presumptively reasonable’"; and it essentially affirmed the sentence on that basis.

In granting certiorari in that case, the Supreme Court posed three questions:

As we have frequently noted, since Booker was decided in January, 2005, the appellate courts have established several noticeable sentencing patterns in reviewing sentences imposed under the now-advisory Guidelines. Sentences within the Guideline range are rarely reversed. Sentences below the Guideline range (which favor the defendants) are usually reversed. And sentences above the Guideline range (which are usually sought by the Government) are ordinarily affirmed.

In addition, six of the Circuits have concluded that sentences within the Guideline range are presumptively reasonable; while four other Circuits have disagreed - at least in principle.

Based on the sentencing patterns that have developed since Booker was decided in January, 2005, some commentators (such as Prof. Douglas Berman, the author of the highly regarded Sentencing Law and Policy Blog) have argued that the appellate courts’ rigid adherence to the so-called advisory Guidelines in the post-Booker era have in fact converted the Guidelines back into a de facto mandatory Guidelines system in which the district courts have even less sentencing discretion than they had under the old pre-Booker Guideline system.

Clearly, Booker has led to a flood of appeals by inmates who have argued that using a presumption of reasonableness essentially revives the mandatory nature of the Guidelines and gives undue weight to the Guidelines as one of the sentencing factors listed in 18 U.S.C. § 3553(a), at the expense of the other factors, including the so-called “parsimony provision,” which states that “the court shall impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in paragraph (2) of this subsection.”

By accepting these two appeals, the Supreme Court has jumped squarely into the debate about the meaning of the “reasonableness” standard of appellate review that Booker established. While a decision in this case is not expected before late Spring, 2007, it will be closely watched, since the decision will reflect, for the first time, the views of the two newest Justices on the Court, Justices Roberts and Alito, on the sentencing revolution that began with Apprendi v. New Jersey, 530 U.S. 466 (2000), continued with Blakely v. Washington, 542 U.S. 296 (2004) and culminated in last year’s decision in Booker.

However, even if both of the new Justices were to espouse a different approach to the sentencing revolution created by the majority opinions in Apprendi, Blakely and Booker, it is unlikely that their views would dramatically reshape the Court’s approach about the respective roles of judges and juries in the sentencing process, since the Justices they replaced (Justices Rehnquist and O’Connor) voted against the majority holdings in those cases anyway.

Nevertheless, any decision that addresses the meaning of the “advisory” Guidelines, or that clarifies how much discretion the district courts actually have to vary from the suggested Guideline sentencing ranges, or that explains what the Court meant when it established a standard of reasonableness for purposes of sentencing appeals, could have a profound impact on the sentencing trends that have developed to date.

 


U.S. v. Santiago, No. 05-30584 (9th Cir. Oct. 23, 2006) (Judge Gould)

The defendant in this case, Jesus Santiago, pled guilty to one count of conspiracy to distribute methamphetamine, apparently without the benefit of any stipulations or agreements as to relevant conduct. Because the approximately three kilograms of methamphetamine seized or purchased by government agents from Santiago and his co-conspirators did not reflect the full scale of Santiago's offense, the presentence report (PSR) prepared by the Probation Department estimated that the quantity of methamphetamine attributable to him was between 17 and 104 kilograms. The Probation Department based its estimate on interviews with persons who purchased methamphetamine from and used methamphetamine with Santiago. Persons interviewed said that Santiago delivered between one and five pounds of methamphetamine per week over an eighteen to twenty-three month period.

Not only did Santiago fail to file any written objections to any of the facts recited in the PSR, at his sentencing hearing he again failed to make any objections to the PSR, even after the district judge commented: "I have some concern about how the total amount of drugs was arrived at. Nevertheless, I'm convinced that there's a sizable amount."

With no objections from Santiago, the district court imposed a sentence of 300 months imprisonment with ten years supervised release. On appeal, Santiago argued that the district court did not properly calculate the drug quantity attributable to him, and that this was reversible error.

On appeal, the Ninth Circuit framed the question before the court as “whether the plain error standard of review applies when the district court expressed ‘concern’ about how a [PSR] calculated the quantity of drugs attributable to the defendant, but the defendant did not object to any part of the PSR.”

On that issue, the Court concluded that “absent specific objection by the defendant, the plain error standard controls even when the district court expresses concern about a PSR.” The Court also noted that several other Circuits, including the Sixth, Eighth and Eleventh, had taken similar positions. Here, it explained: “Though the district court may have had concerns about the PSR, when counsel for Santiago did not object, the district court was entitled to conclude, without further analysis, that its concerns were unjustified,” citing the provisions of Fed. R. Crim. P. 32(i)(3)(A) ("At sentencing, the court . . . may accept any undisputed portion of the presentence report as a finding of fact. . . .").

Thus, because the defendant failed to object to the facts set forth in the PSR, the district court did not err when it relied on the PSR for purposes of calculating the drug quantities attributable to the defendant. Emphasizing that it was the defendant's duty to object to any part of the PSR that he felt was erroneous, the Court stated:

“We thus hold that our review is limited to review for plain error when counsel has not objected to any part of the PSR, whether or not the district court has expressed concerns, doubts, or qualifications regarding the PSR's drug-quantity calculation. In an adversarial system, it is counsel's duty to object to any part of a PSR that a party asserts to be erroneous.”


U.S. v. Francis, 462 F.3d 810 (8th Cir. Sept. 8, 2006) (Judge Smith)

The 65-year-old defendant in this case, John Francis, is a lifelong firearms enthusiast who, according to the Court, is a “world-renowned firearms expert.” In 1984, as a licensed firearms dealer, he sold 178 firearms to a Texas couple, whose firearms dealer’s license had recently lapsed. He was charged with conspiring to distribute firearms without a license; and he ultimately pled guilty and was sentenced to four years in prison. He served only 179 days, and the remainder of his sentence was suspended.

After serving his sentence, Francis obtained permission from the U.S. States Probation Office to work in his family’s preexisting gun business. Francis relinquished all stock in the business to his wife, who possessed a federal firearms license.

In 1987, Francis and his wife were concerned about the legality of their arrangement and were advised by Francis's probation officer to contact the ATF for further direction on remaining compliant with federal law. The ATF warned Francis that he could not be "in control, that is, possession, of any firearms." Francis successfully completed his probation in 1990. In 1992, he applied for restoration of his firearms privileges. The ATF recommended that Francis's firearms privileges be restored but apparently never restored them because of the agency's budget constraints.

Although it had no money to restore Francis’ gun license, the ATF did have the funds to launch an investigation of Francis’ gun-related activities. In 2002, it used a confidential informant to initiate a transaction with Francis. Among other things, the Government videotaped Francis and the informant entering the store’s vault, where Francis allowed the informant to handle a weapon - although Francis himself did not handle the weapon.

Ultimately, the ATF raided the store and seized 211 firearms in the store’s vault and charged Francis with being a felon-in-possession of firearms in violation of 18 U.S.C. § 922(g)(1). Francis pled guilty, pursuant tp a written plea agreement, to possession of a single firearm in violation of § 922(g)(1). At sentencing, the Government argued that Francis constructively possessed the additional 211 firearms seized from the store’s weapons vault; and, it sought a ten-level sentencing enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1), on the grounds that Francis had constructive possession of those weapons.

The district court (Judge Dorr of the W.D.Mo.), recognizing the unusual nature of the facts of this case, found that Francis did not possess the additional firearms and declined to impose the enhancement. The court noted that the Probation Office had approved Francis’ employment in the family-owned business and stated that there was no danger to the public because all of the store’s sales of guns were to legitimate purchasers.

On an appeal by the Government, the Eighth Circuit reversed, and it remanded for resentencing. The panel concluded that Francis did constructively possess the firearms in the vault because his desk was at the entrance of the vault where he knew the firearms were stored; he had the combination to the vault and opened it regularly. Therefore his constructive possession was established by his knowledge, close physical proximity, unfettered access, and occasional handling of firearms he was prohibited from possessing.

In rendering its decision, the panel did pay some lip service to the “troubling aspects” of the roles of the Probation Office and the ATF in leading Francis on in this case. Almost as an afterthought, and with seemingly helpless piety, it made the following pathetically impotent comment at the end of its decision:

“A troubling aspect of the instant case is that a defendant who pleaded guilty to possession of a single firearm became subject to substantially greater punishment through a sentence enhancement for conduct that time, the federal probation office, and the ATF may have lulled the defendant into believing was acceptable.” (Id., at 815)


In Brief

Freedom of Information Act - Inmates’ Access to Electronic Records: Sample v. BOP, No. 05-5038 (D.C. Cir. Nov. 3, 2006) - In this case, the petitioner made a Freedom of Information Act request for a large number of BOP documents in electronic format; but the BOP provided them as paper copies only, citing prison regulations that restrict inmates' possession of or access to computers and electronic media. The petitioner appealed, arguing that he was entitled to the documents in electronic format, presumably on the grounds that they are far easier to search in that format.

The D.C. Circuit sided with the inmate’s claim and held that, under the provisions of 5 U.S.C. § 552(f)(2), the BOP must provide records in electronic format as requested, despite its standing regulations that deny inmates access to computer disks, CD-ROMs and computer terminals. In reality, the ruling will probably result in a Pyrrhic victory for the inmate, since the Court’s ruling merely requires the BOP, in its capacity as FOIA respondent, to produce the records in the format requested. The ruling, however, does not prevent the BOP, in its capacity as custodian of the inmate who requested the record, from confiscating the CD-ROM containing the records when it arrives at the prison pursuant to generally-applicable BOP regulations.


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