|Vol. 14, No. 45||
Covering Cases Published in the Advance Sheets through Nov. 5, 2007
New Supreme Court Actions
Court Grants Habeas Petition Due to State Court's "Myopic Insistence Upon Expeditiousness"
Kimbrough v. U.S., No. 06-6330 (U.S. Sup. Ct. Dec. 10, 2007) (Justice Ginsburg)
Because both the instant decision and the decision in the Gall case (below) were released too late to permit a detailed analysis this week, we have highlighted below some of the important features of both of these extremely significant sentencing decisions; and we will present a much more detailed analysis in next week’s issue of P&J.
Derrick Kimbrough pled guilty to distributing 50 grams of more of crack cocaine. His Guideline sentencing range was 168-210 months, plus a mandatory 60 months for a related gun charge. His sentencing judge (Judge Raymond Jackson of the E.D.Va.) found the sentence dictated by the Guideline range and the crack-powder disparity to be “ridiculous,” and imposed a sentence of 15 years, which was 4 1/2 years below the bottom of the range for his crime.
The Government appealed that sentence reduction; and, in a decision reported at U.S. v. Kimbrough, 174 Fed. Appx. 798 (4th Cir. May 9, 2006), the Fourth Circuit vacated the sentence, holding that “a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.”
On appeal, the Supreme Court emphatically stated that the reduced sentence “should survive appellate inspection”; and, by a vote of 7-2, it reversed the Fourth Circuit, stating:
“We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing. (18 U.S.C. §3553(a)). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.”
That ruling clearly validates the view of the U.S. Sentencing Commission that the 100-to-1 crack v. powder cocaine disparity may exaggerate the seriousness of crack crimes; and it firmly rejected the Bush Administration’s argument that, because Congress had written the ratio into Federal law, Federal judges could not depart from it.
Most significantly, this decision represents a major restoration of flexible authority for sentencing judges to set sentences for crack cocaine crimes below the range of punishment called for by the now-advisory Guidelines.
While the case did not present the Justices with the ultimate question of the fairness of the existing disparity between crack cocaine and powder cocaine sentences, the Court’s ruling will certainly bring about a sea-change in the law relating to crack cocaine sentencing. More anon!
Gall v. U.S., No. 07-7949 (U.S. Sup. Ct. Dec. 10, 2007) (Justice Stevens)
While in college in Iowa, Brian Michael Gall distributed the illegal drug “ecstasy.” After he graduated, moved away from Iowa and stopped selling drugs, Gall learned that he had been indicted for his prior drug activities. He immediately surrendered himself to the Federal authorities; and he subsequently pled guilty to conspiracy to distribute drugs,
Gall’s Guideline sentencing range for his crime was 30-37 months in prison, but Judge Robert Pratt of the S.D. Iowa imposed a sentence of 36 months on probation, largely based on his more recent behavior. In U.S. v. Gall, 446 F.3d 884 (8th Cir. May 12, 2006), the Eighth Circuit vacated Gall’s sentence, after concluding that such a sentence would be reasonable only if justified by “extraordinary circumstances.”
On appeal, the Supreme Court reversed, again by a vote of 7-2. Not only did the Court find the sentence imposed by Judge Pratt to be “reasoned and reasonable,” it emphatically stated:
“We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.”
In a landmark decision written by Justice Stevens, the majority also rejected “any appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.”
Finally, the majority flatly rejected a de novo review of sentences imposed by sentencing judges, stating: “Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.”
Once again, Justices Thomas and Alito dissented; and Justice Alito warned that “sentencing disparities will [now] gradually increase.”
Coupled with the Court’s ruling in Kimbrough, the Supreme Court has forcefully reinstated the discretion of sentencing judges and effectively abolished the current Circuit practice of rejecting virtually any departures from the Guideline range. More on both of these significant rulings next week.
Logan v. U.S., No. 06-6911 (U.S. Sup. Ct. Dec. 4, 2007) (Justice Ginsburg)
For its first published decision of the new term, the Supreme Court chose another one of those recondite issues for which it has become famous; and, in the process, it rejected the pleas of the NRA, the NACDL and the Families Against Mandatory Minimum Foundation (“FAMM”), all of whom (in a rare showing of common interests) submitted amicus briefs on behalf of the petitioner.
In 2005, petitioner James Logan was convicted as a felon in possession of a firearm; and he received a mandatory minimum sentence of fifteen years as an armed career criminal under the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1). The ACCA imposes that enhanced penalty whenever a person, who having previously been convicted of three violent felonies or serious drug offenses, is subsequently convicted of the unlawful possession of firearms in violation of 18 U.S.C. § 922(g)(1).
Federal law defines a “violent felony” as a violent crime that is “punishable by imprisonment for a term exceeding one year.” But state-classified misdemeanors also count as violent felonies under Title 18 if the sentences imposed for those crimes exceed two years. In the instant case, Logan’s three previous battery convictions - though “misdemeanors” under Wisconsin law - were treated as “violent felonies” for purposes of the ACCA because they carried maximum terms of three years’ imprisonment.
However, Logan did not challenge the classification of his prior convictions based on their maximum terms of imprisonment. Instead, he argued that his prior convictions should not count as violent felonies because they fell within one of the statutory exemptions that Congress created in 1986 when it enacted the Firearms Owners Protection Act (“FOPA”). That law amended 18 U.S.C. § 921(a)(20) to provide that, for ACCA sentence-enhancement purposes, a prior conviction may be disregarded if the conviction “has been expunged, or set aside,” or the offender “has been pardoned or has had [his] civil rights restored.” (Emphasis added).
Specifically, and consistent with the First Circuit’s holding in U.S. States v. Indelicato, 97 F.3d 627 (1st Cir. Oct. 15, 1996), Logan argued that a conviction which did not result in the loss of civil rights (e.g., the rights to vote, serve on a jury, and hold public office) should be treated the same as a conviction resulting in terminated but restored rights.
In U.S. v. Logan, 453 F.3d 804 (7th Cir. July 6, 2006) (“Logan I”), the Seventh Circuit upheld Logan’s conviction, holding that a state conviction which does not result in the loss of civil rights qualifies as a predicate offense under the ACCA. The Seventh Circuit rejected Indelicato’s analysis, calling it an “imaginative reconstruction” of the statute, and instead concluded that the “civil rights restored” provision of § 921(a)(20) only applies when a state deprives a defendant of civil rights and later restores them.
The Supreme Court granted certiorari to resolve a split among the Circuits as to whether §921(a)(20)’s exception for “civil rights restored” should be interpreted to include civil rights retained at all times.
In a decision written by Justice Ginsburg, the Court ruled unanimously that the ACCA’s sentence enhancement provision applies to an individual who has never lost his civil rights. The Court reasoned that “a defendant who retains rights is simply left alone. He receives no status-altering dispensation, no token of forgiveness from the government.” Thus the Court held that:
“the § 921(a)(20) exemption provision does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation. Section 921(a)(20) sets out postconviction events -- expungement, set aside, pardon, or restoration of civil rights -- that extend to an offender a measure of forgiveness, relieving him from some or all of the consequences of his conviction. Congress might have broadened the § 921(a)(20) exemption provision to cover convictions attended by no loss of civil rights. The national lawmakers, however, did not do so. Section 921(a)(20)'s failure to exempt convictions that do not revoke civil rights produces anomalies. But so does the extension of the § 921(a)(20) exemption that Logan advances. We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights; nor can we recast § 921(a)(20) in Congress' stead.”
As a matter of interest, the amicus briefs filed in this case are available on the Internet at www.scotuswiki.com/index.php?title=Logan_v._US/. The joint NACDL/FAMM brief submitted in support of Logan expressed deep concern the Seventh Circuit’s decision in Logan I "reflects an unlawful extension of the reach of a severe mandatory penalty for a firearms possession offense, in that Congress has determined that the federal firearms disability should not apply to those individuals — such as petitioner Logan — who retain their civil rights and are deemed by their own states to be trustworthy enough to possess a firearm." True to form, the NRA’s argument in support of Logan was a pretty traditional Second Amendment argument that essentially went as follows:
“FOPA enacted Findings indicating Congress’ understanding that law-abiding citizens have a right to keep and bear arms. The Act’s prohibitions and exceptions should be interpreted with this purpose in mind. The civil-rights restoration provision reflects that an ex-offender currently has the rights to vote, run for office, and serve on a jury, thus is considered to be a law-abiding citizen, and should not be subject to a lifetime prohibition on firearms ownership.”
Carlson v. Jess, 507 F.Supp.2d 968 (E.D.Wisc. Sept. 4, 2007) (Judge Adelman)
One of the many abominations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was that it threw out more than 200 years of carefully-reasoned precedent relating to the Great Writ of habeas corpus, which for centuries functioned as the "symbol and guardian of individual liberty." Peyton v. Rowe, 391 U.S. 54, 58 (1968).
Effectively, the AEDPA decreed that henceforth a federal court could issue a writ of habeas corpus to a state prisoner only if the decision of the last state court to examine the merits of the petitioner's claim was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" (28 U.S.C. § 2254(d)(1)), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" (28 U.S.C. § 2254(d)(2)).
As a result of that law and subsequent interpretative decisions by the Supreme Court, the sheer incidence of rulings granting writs of habeas corpus has declined dramatically since 1996, despite an ever-rising prison population and growing evidence of miscarriages of justice in criminal proceedings generally.
The instant case is a rare example of a successful habeas petition, written by one of America’s most forthright judges. On May 20, 2002, the petitioner, Matthew Carlson, a middle-aged, married Wisconsin resident, was arraigned on charges that he had sexually assaulted a 15-year old boy in 1996 and 1998, several years after those assaults allegedly occurred.
He appeared before an unnamed state court judge who promised quick justice; and, true to that promise, Carlson’s trial commenced on August 27, 2002, despite numerous rejected efforts to delay that trial. Ultimately, Carlson was convicted of four counts of four counts of first-degree sexual assault of a child; and he was sentenced to 55 years in prison - which, as Judge Adelman noted, was effectively a life sentence.
Carlson originally retained attorney Randall Kaiser to represent him; but the relationship between Carlson and Kaiser quickly broke down so badly that Kaiser, himself, appeared before the state judge and asked to be relieved because of a “total breakdown in communications” between him and Carlson. From Carlson’s perspective, the breakdown was the result of a near total disagreement about how to defend the case: Kaiser wanted Carlson to plead guilty but Carlson wanted to go to trial. At one hearing, Carlson bitterly complained:
“I have not received one piece of paper concerning this case since I have been incarcerated. I have not one sheet of paper about this case to look back on when I am in jail. . . . And also I have talked to Mr. Kaiser several times about different witnesses that obviously he doesn't feel I need, and I have mentioned to him and so have my parents and my wife about possibly different people we could bring, prior to May 23rd or whatever that was, and I still have not heard nothing about that either.”
Finally, on August 17, 2002, Carlson retained attorney Robin Shellow of Milwaukee to represent him. Kaiser then moved to withdraw as counsel; and Shellow moved to be substituted as Carlson’s counsel, conditioned upon the court's adjourning the trial date so she could prepare for trial. In support of her motion, Shellow stated that she needed time to conduct additional investigation and interviews and to retain an expert. Shellow also stated that she wished to explore why the alleged complainant had failed to report the assaults until four to six years after they allegedly occurred and whether he had a motive to fabricate the accusations. She noted that the complainant resided at Rawhide Boys Ranch, a privately-operated facility for seriously delinquent boys.
The trial judge did not sit during the week of August 19 and thus he did not promptly address Kaiser's motion to withdraw or Shellow’s motion for substitution and a continuance. However, on August 26, the day before the trial was scheduled to begin, the judge returned to the bench and held a brief hearing. At the conclusion of the hearing, the state judge conceded that "the defendant has a right to counsel," but stated: “I think here there are paramount issues. And the first issue is the orderly administration of this Court.”
Ultimately, over the strenuous objections of Shellow, the trial judge denied the motions before him, stating: “This case is going to trial tomorrow. I don't see any reason why it can't go. This Court is prepared to try it.”
Based on those facts, Judge Adelman was appalled; and he granted Carlson’s petition for a writ of habeas corpus. While he acknowledged the difficult burdens of proof that now exist under the AEDPA, he excoriated the trial court for adopting “a single-minded focus on its own schedule and an unreasonable inflexibility about modifying it. Such rigidity can only be characterized as arbitrary.”
While one should read the entire decision to appreciate fully the scope of Judge Adelman’s scathing criticisms of the state judge’s action in this case, a few passages suffice to show the measure of his scorn:
“In the present case, it is clear that the trial court's decision was founded on the court's preference rather than on reason or fact. No fair-minded reviewer can evaluate the record in the present case without concluding that the trial court was so intent on adhering to the schedule it had established at petitioner's arraignment that it lacked any willingness to fairly consider the justifications advanced by petitioner in support of his motions and to fairly weigh them against possible countervailing factors related to continuing the case. As I will discuss, the trial court dismissed out of hand the reasons that petitioner proffered for the motion, making no attempt to determine whether the facts supported them, and then refused to balance such reasons against factors that might have supported denying the motions. . . .
“The record shows that from the time of petitioner's arraignment, the court treated speed as its top priority and the trial date as immutable. Just as the court had denied petitioner's two previous reasonable motions for a continuance without any discussion of petitioner's interests, it also denied the motions to withdraw and for substitution and a continuance without any meaningful analysis and without recognizing that such motions implicated constitutional concerns. The court denied petitioner's motions for substitution of counsel and a continuance without regard to fact or reason and displayed "a myopic insistence upon expeditiousness" in the face of two independent constitutional rights. The court therefore acted arbitrarily and denied petitioner his Sixth Amendment right to choice of counsel and his Fourteenth Amendment right to due process of law.”
The Department of Justice’s Bureau of Justice Statistics has released its annual head count of the number of persons in State and Federal prisons, and the number of persons on probation and parole, at the end of 2006, This year, the reports are broken into two parts, the first called “Prisoners in 2006" and the second called “Probation and Parole in the United States, 2006.”
Both reports confirm that the U.S. adult correctional population - already the largest in the world - continues to increase. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prisons or jails or on probation or parole at the end of 2006; and the number of men and women who were being supervised on probation or parole in the United States at year-end 2006 reached 5 million for the first time.
Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:
Year to Date
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