Vol. 12, No. 7
Covering Cases Published in the Advance Sheets through Feb. 14, 2005

Booker

Supreme Court

Court Blasts the Government's Use of an Underhanded "Litigation Strategy"

Destructive Searches


Booker Boxscore
Past Week's New Decisions -  60 Total Since Jan. 12, 2005 -  298

U.S. v. Booker - Update

As can be seen from our “Booker Boxscore”, the flood of decisions interpreting the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005) is still coming in at a fast and furious pace; and now Booker-watchers have to deal with still another new Supreme Court development - the issuance this week of a new sentencing decision in Shepard v. U.S. (see below).

Two of the most noteworthy new Booker decisions were Judge Gertner’s tour-de-force in U.S. v. Jaber, No. 02-CR-10201-NG (D.Mass. 03/03/2005); and Judge Adelman’s equally brilliant ruling in U.S. v. Smith, No. 02-CR-163 (E.D.Wisc. 03/03/2005). Sadly, due to the unprecedented pace of new Booker developments, space does not permit a detailed analysis of those two decisions; although they are, of course, posted on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/, where we list, on a daily basis, all the new cases and case summaries for each Circuit in alphabetical order.

The Fifth Circuit has finally joined the fray by issuing its first substantive Booker ruling U.S. v. Mares, 2005 U.S. App. LEXIS 3653 (5th Cir. 03/04/2005), in which it adopted the rigorous plain error approach of the First and Eleventh Circuits, which requires the defendant to establish that the claimed Booker error clearly affected the outcome of his earlier sentencing.

Thus, as Professor Berman recently summarized on his Website at http://sentencing.typepad.com/, the Circuit Courts are divided into three camps on the “plain error” issue, as follows:

• “The ‘defendant must prove’ plain error standard. The 1st, 5th and 11th Circuits are applying the most rigorous plain error standard by requiring defendants to make a specific showing of prejudice from the application of mandatory guidelines (the reasonable probability of a different outcome) to satisfy the third step of plain-error review;

• “The ‘let's ask when in doubt’ plain error standard. The 2nd and 7th Circuits have adopted the general rule that, whenever the impact of the guidelines being advisory is unclear, the Circuit will ask the sentencing judge whether a defendant was prejudiced by advisory guidelines so as to satisfy the third step of plain-error review; and

• “The ‘presumption of prejudice’ plain error standard. Though only clearly articulated in the 6th Circuit, it seems the 3rd, 4th, 6th, and 9th Circuit have all adopted a general presumption that a defendant was prejudiced by being sentencing pursuant to advisory guidelines so as to satisfy the third step of plain-error review.”

On a different front, the dimensions of the Booker revolution are beginning to come into focus. In support of a recent “emergency, supplemental request” for an additional $91.3 million to help the courts deal with the expected tide of Booker/Fanfan appeals, the Secretary of the Judicial Conference of the United States has estimated that “12,000 to 18,000 new filings could be lodged under 28 U.S.C. § 2255, attacking an original sentence and asking the district court which imposed the sentence to vacate, set aside, or correct the sentence. These filing estimates are based on the Bureau of Prisons population, reduced for the inmates who already received reduced sentences under 5K1.1 (substantial assistance departure), inmates with less than six months to serve, and inmates who received no enhancements.”

Finally, the U.S. Sentencing Commission has released some rather surprising statistics based on 1,986 sentences imposed in the Federal courts from January 12, 2005 (the date Booker was decided) through February 17, 2005. Those statistics show that:

• 65.7% of the sentences imposed during that period were within the Guidelines’ advisory range (compared with 65.0% for the entire year 2002);

• 2.0% of the sentences were above the Guidelines’ advisory range (compared with 0.8% for the entire year 2002; and

• 32.4% of the sentences were below the Guidelines’ advisory range, but most of those (62.8% of that total) were “government-sponsored downward departures,” principally for substantial assistance pursuant to U.S.S.G. § 5K1.1 or for “fast-track departures” pursuant to U.S.S.G. § 5K3.1.

Thus, it would seem that the courts appear to be staying within the general framework recommended by the Guidelines; and that the many predictions that Booker will result in radical changes in the sentencing practices envisioned under the mandatory Guideline system appear to be unfounded - at least so far. To the extent that trend continues, there should be less pressure on Congress to enact some quick “fix” to Booker.


Shepard v. U.S., No. 03-9186, 2005 U.S. LEXIS 2205 (03/07/05) (Justice Souter)

In this case, a slim majority of Supreme Court Justices has given notice that it has not yet completed its re-examination of the criminal sentencing process; and that some of the Supreme Court’s prior precedents may no longer be valid under the sentencing revolution that started with Apprendi v. New Jersey, 530 U.S. 466 (1980), continued with Blakely v. Washington, 124 S.Ct. 2531 (2004), and has culminated (at least so far) with U.S. v. Booker, 125 S.Ct. 738 (2005).

Here, the majority overturned a 15-year mandatory sentence that the First Circuit had ordered imposed on Reginald Shepard in U.S. v. Shepard, 348 F.3d 308 (1st Cir. Nov. 3, 2003) (Shepard II). Shepard originally pled guilty to being a felon in possession of a firearm; and his Guideline sentencing range for that crime was 30-37 months. However, at the time of the firearm offense, Shepard had a number of prior state criminal convictions for breaking and entering.

The government argued that at least five of those convictions were "violent felonies" within the meaning of the Armed Career Criminal Act ("ACCA") because they qualified as "burglaries" under 18 U.S.C. § 924(e)(2), as interpreted by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990). Thus, under the Government’s view, Shepard’s sentence should have been increased from approximately 3 years to a mandatory 15 years by virtue of his claimed status as an armed career criminal.

In Taylor, the Supreme Court concluded that the ACCA’s use of the term “burglary” was meant to encompass only what it described as “generic” burglary, i.e., a crime with three elements: (i) “unlawful or unprivileged entry into, or remaining in,” (ii) “a building or structure,” (iii) “with intent to commit a crime.” (Taylor, id., at 598—599). The Taylor court also generally prohibited the sentencing court from delving into particular facts disclosed by the record of conviction, thus leaving the sentencing court normally to “look only to the fact of conviction and the statutory definition of the prior offense.”

In Shepard’s case, it was unclear from the plea agreement whether the five convictions at issue involved an unlawful entry into “a building or other structure, with intent to commit a crime.” Accordingly, the Government urged the District Court to examine reports submitted by the police with applications for issuance of the complaints, as a way of telling whether Shepard’s prior convictions qualified as violent felonies under the ACCA, as interpreted in Taylor.

In the first of a long series of decisions in this case, Judge Gertner of the D.Mass. declined to sentence Shepard as an armed career criminal on the grounds that Taylor forbade reference to the police reports and complaint applications submitted by the Government. She therefore sentenced Shepard to 46 months in prison (which included a two-level upward departure). (U.S. v. Shepard, 125 F.Supp.2d 562 (D.Mass. 2000)) (Shepard I).

The Government appealed; and there followed a long series of appeals and remands. Ultimately the First Circuit concluded, in Shepard II, that there was no “absolute bar” under Taylor to consideration of police reports and complaint applications; and it noted that Shepard had never “seriously disputed” that he did in fact break into the buildings described in the police reports or complaint applications. Accordingly, the First Circuit remanded the case back to Judge Gertner with instructions to impose the mandatory 15-year sentence.

The Supreme Court granted certiorari to address divergent decisions in the Courts of Appeals applying Taylor when prior convictions stem from guilty pleas, not jury verdicts. The precise issue addressed by the Court was “whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary.”

By a 5-to-3 vote, the Supreme Court reversed the First Circuit’s decision in Shepard II, holding that it had erred by ordering Judge Gertner to conduct too wide-ranging an investigation into whether Shepard’s prior convictions met the statutory definition of violent felonies under the ACCA. Writing for the majority, Justice Souter said that a sentencing court “may not” do such fact finding; and that, in cases involving plea bargains, the court is essentially limited “to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”

While the scope of the Court’s ruling is somewhat limited by the facts of this case to the sentencing of armed career criminals, the Justices clearly recognized that the decision had far broader ramifications.

For example, in her dissent, Justice O’Connor bluntly stated “I strongly suspect that the driving force behind today's decision is not Taylor itself, but rather ‘developments in the law since Taylor’." Justice Thomas was even more specific. In his concurrence he wrote:

“The need for further refinement of Taylor endures because this Court has not yet reconsidered Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which draws an exception to the Apprendi line of cases for judicial factfinding that concerns a defendant’s prior convictions.

Almendarez-Torres, like Taylor, has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. . . . The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres . . . .” (Internal citations omitted).

Those statements make clear that the same majority of Justices who brought us Apprendi and Blakely and Booker may now be on the verge of removing the “prior conviction exception” to Apprendi’s rule (which held that facts which “increase[ ] the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury and proved beyond a reasonable doubt.”) While the Court stopped short of inflicting the coup de grace to the prior conviction exception, most commentators view Almendarez-Torres as short-lived at best; and, for that reason, Shepard has generated a lot of excitement as an indication of the next wave of sentencing cases.


Wilkinson v. Dotson, No. 03-287, 2005 U.S. LEXIS 2204 (03/07/05) (Justice Breyer)

This is another of a long line of cases which, to use of the words of the Supreme Court, “lies at the intersection of the two most fertile sources of federal-court prisoner litigation - the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, and the federal habeas corpus statute, 28 U.S.C. § 2254. Both of these provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation. In general, exhaustion of state remedies ‘is not a prerequisite to an action under § 1983,’ even an action by a state prisoner. The federal habeas corpus statute, by contrast, requires that state prisoners first seek redress in a state forum.” (Heck v. Humphrey, 512 U.S. 477, 480 (1994) (internal citations omitted).

Starting with Preiser v. Rodriguez, 411 U.S. 475 (1973) and continuing through Edwards v. Balisok, 520 U.S. 641 (1997), the Court has held that a prisoner in state custody cannot use a §1983 action to challenge “the fact or duration of his confinement.” He must seek federal habeas corpus relief (or appropriate state relief) instead.

In the instant case, the Supreme Court added some additional subtle (if not confusing) nuances to the differences between the two statutes. By an 8-to-1 vote it held that state prisoners may file a Federal civil rights lawsuit pursuant § 1983 challenging the constitutionality of state parole eligibility and suitability procedures, and are not required to pursue such claims solely under the considerably more restrictive § 2254.
In so ruling, the court rejected arguments by the state of Ohio, which claimed that the two inmates who brought the action, William Dotson and Rogerico Johnson, were using the civil rights law to do just what the Supreme Court had prohibited in its earlier cases - namely, challenging the fact or duration of their confinement.

"The problem with Ohio's argument lies in its jump from a true premise ... to a faulty conclusion," Justice Breyer wrote. "Success for Dotson" on the civil rights claim "does not mean immediate release from confinement or a shorter stay in prison," Breyer wrote. "Success for Johnson means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term."

In a lone dissent, Justice Anthony Kennedy objected, saying, "Today's decision allows state prisoners raising parole challenges to circumvent the state courts." Eighteen states joined with Ohio in urging that the inmates not be allowed to proceed with their federal civil rights claims.

Dotson, who began serving a life term in 1981 for murder, was seeking an immediate parole hearing, challenging guidelines that said he must wait five more years. The guidelines applied in Dotson's case were adopted in 1998, long after he began serving his sentence. Johnson, who began serving a 10-to-30-year sentence in 1992 for robbery, was seeking a new parole hearing, after he was found unsuitable for release under the 1998 guidelines.

The Court held that both of their claims were properly brought under §1983 because “Dotson and Johnson seek relief that will render invalid the state procedures used to deny parole eligibility (Dotson) and parole suitability (Johnson). Neither respondent seeks an injunction ordering his immediate or speedier release into the community."


In Brief

DNA Testing: Padgett v. Donald, No. 03-16527 (11th Cir. 03/04/05) - In a case of first impression, the Eleventh Circuit rejected a constitutional challenge to a Georgia law requiring incarcerated felons to submit DNA samples "by taking blood, swabbing the inside of his mouth for saliva, or using any other noninvasive procedure" for a felon DNA database.

Prison Issues: Banks v. Beard, No. 03-1245 (3rd Cir. 02/25/04) - In this case, the Third Circuit held that the district court had erred when it upheld a state prison’s policy, which banned inmates' access to newspapers, magazines and photographs that were neither legal nor religious in nature, as reasonably related to legitimate penological interests.

Bennett v. Frank, 395 F.3d 409 (7th Cir. 2005) - Here, the Court rejected a claim by inmates of a private prison which was under contract to the Wisconsin Department of Corrections that they were entitled to the benefits of the minimum wage provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA). It held that the FLSA was intended for the protection of employees and that “prisoners are not employees of their prison, whether it is a public or private one. So they are not protected by the [FLSA].” The Court then continued: ”Oddly, this is so only because of the presumed legislative intent and not because of anything in the actual text of the FLSA.” (Id., at 409).

 


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
33
293
21,481
District Courts
26
171
11,985

 


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