Vol. 12, No. 8	Covering Cases Published in the Advance Sheets through Feb. 21, 2005

Booker

• This past week 51 new Booker decisions from the lower courts were reported - bringing the total number of reported Booker decisions to date to 349. That number, however, includes only a tiny fraction of the total number of post-Booker sentencing rulings from the district courts. According to the most recent statistics compiled by the United States Sentencing Commission, during the five-week period from January 12 through March 3, there were actually a total of 3,164 district court sentencing rulings involving Booker - the great bulk of which did not result in a written ruling.

  Among the more significant new Booker developments this past week were the following: The Ninth Circuit vacated its previous ruling in U.S. v. Ameline, and agreed to rehear that case en banc - throwing into doubt whether the Ninth Circuit will continue to use its “presumption of prejudice” plain error standard for Booker appeals; and U.S. v. Harris, where Judge Robertson of the D.D.C. raised an intriguing question: whether, after Booker, a judge may determine that the amount of crack cocaine in a defendant’s possession could be less than what was charged or established by a jury’s verdict?

Crack v. Cocaine - The Debate (and the Circuit Split) Over What Constitutes Crack Continues

• The Edwards case from the Seventh Circuit is noted for its detailed analysis of the legal and factual distinctions between crack and cocaine base under Federal law, and its comprehensive review of the three-way Circuit split that exists on the issue of whether the mandatory minimum sentence required by 28 U.S.C. § 841(b) applies (like the Guidelines) to crack offenses only.
  

The Scope of Waivers of Appeal - The Debate Continues

• In Jeronimo, a divided panel from the Ninth Circuit declined to hear the defendant’s appeal that his plea agreement was involuntary because of erroneous advice from his counsel on the grounds that it lacked jurisdiction to assess the merits of his claim since the defendant had signed a waiver of his appeal rights. In a blistering dissent, Judge Berzon said the majority never addressed the crux of the case - whether the plea agreement could have been knowing and voluntary in light of the “sworn uncontroverted testimony” about the defendant’s lawyer’s “inadequate and fraudulent” representations.
  

Antiterrorism - Primer on the Guantanamo Cases

• Lyle Denniston, one of the many regular contributors to the outstanding SCOTUSblog, continues to provide the most up-to-date summary of the many legal proceedings involving the Guantanamo detainees - which is no mean feat since the Administration is doing everything in its power to prevent the U.S. courts from looking at anything it does. Mr. Denniston’s “Primer on the Guantanamo Cases” is available at www.scotusblog.com/movabletype/archives/2005/03/primer_on_the_g.html - and it is must reading for anyone concerned about the arrogance of power in America in the aftermath of 9/11.

The Next Issue of P&J Will Be Published in Two Weeks

U.S. v. Booker - Update

As can be seen from our “Booker Boxscore”, the pace of new lower court decisions interpreting the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005) slowed slightly during the past week. That slower pace is probably the calm before the storm that will erupt once pending en banc decisions are published by at least four different Circuits; and once the lower courts start reviewing the more than 500 Booker cases that have been remanded by the Supreme Court, together with the hundreds of cases that have been remanded by the various Courts of Appeal.

In addition, the published rulings represent only a fraction of the cases involving sentencings based on Booker. The U.S. Sentencing Commission continues to monitor closely all the post-Booker cases to determine whether there are noticeable differences between pre-Booker and post-Booker sentences. Its latest analysis was released on March 14, 2005 and covers the 3,164 cases in which sentences were imposed during the period from Jan. 12 through March 3, 2005. A copy of that survey is posted on our Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/, and it shows very little change from the sentencing patterns that occurred during Fiscal Year 2002.

Among the most significant of the new Booker developments during the past week were the following:

• The Ninth Circuit has withdrawn its decision in U.S. v. Ameline, 2005 U.S. App. LEXIS 2178 (9th Cir. Feb. 10, 2005), after the active judges voted to rehear that case en banc. The rehearing raises questions about whether the broad approach to remands (using a “presumption of prejudice” plain error standard) that the Ninth Circuit adopted for Booker cases will survive - particularly since the make-up of the en banc court in the widely-polarized Ninth Circuit depends so much on the luck of the draw. (Under the Court’s rules, out of the 47 judges currently on the bench, the 23 Senior judges are not eligible to sit on en banc panels, and the panel that will rehear the case consists of the Chief Judge and only 10 of the active judges whose names are drawn by the Clerk.)
  
  
• U.S. v. Harris, 2005 U.S. Dist. LEXIS 3958 (D.D.C. Mar. 7, 2005) is one of a number of recent cases that have begun to address the 100:1 crack-powder cocaine sentencing ratio in light of Booker. That ration is a concept that even the U.S. Sentencing Commission has acknowledged “overstates the seriousness of most crack cocaine offenses,” “exaggerate[s] the relative harmfulness of crack cocaine,” and “mostly impacts minorities.” (See, U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 90-103 (2002)).

In this case, Judge Robertson imposed below-Guideline-level sentences to two “bottom-rung street sellers” of crack, after concluding that “it is at least questionable whether either of them actually handled as much as 5 grams.” In justifying that departure, he reasoned in part: “I have not found a case dealing with the question whether relevant conduct must be a one-way ratchet -- that is, whether a judge may determine that the amount of drugs in a defendant's possession could be less than what was charged or established by a jury's verdict -- and the answer to that question under the pre-Booker Guidelines regime seemed obvious. After Booker, however, it seems to be a valid question when evaluating whether a Guidelines sentence is sufficient or greater than necessary, particularly in a case like this one, where (a) the defendants were not charged with or convicted of conspiracy, and (b) the jury's verdict does not reveal whether the jury found that the defendants' possession with intent to distribute 5 grams of crack was actual, or constructive, or shared.”

For some other recent notable post-Booker decisions dealing with the craziness of the 100:1 crack-powder ratio, see U.S. v. Thomas, 2005 U.S. Dist. LEXIS 3972 (D.Mass. Mar. 14, 2005) and U.S. v. Simon, No. CR-90-216 (CPS) (S.D.N.Y. Mar. 17, 2005).

U.S. v. Edwards, 397 F.3d 570 (7th Cir. 02/11/05) (Judge Sykes)

Back in 1986, Congress concluded that there was a huge difference between “powder cocaine” and “crack cocaine” (even though both drugs have the same chemical formula); and so it mandated that defendants who are convicted of manufacturing or distributing “crack cocaine” should receive sentences that are 100 times more severe than the sentences imposed on defendants convicted of manufacturing or distributing the same quantities of “powder cocaine.”

From the outset, the rationale of that disparate sentencing policy has been highly controversial and frequently challenged - perhaps nowhere more brilliantly than in Judge Clyde Cahill’s thought-provoking decision in U.S. v. Clary, 846 F.Supp. 709 (8th Cir. 1994) (“Clary I”). Judge Cahill’s ruling was quickly reversed by the Eighth Circuit in U.S. v. Clary, 34 F.3d 709 (8th Cir. 1994) (“Clary II”); but that reversal could not make Judge Cahill’s powerful decision disappear. In Clary I, Judge Cahill concluded that the crack/cocaine sentencing disparity unconstitutionally discriminates against blacks who are subjected to a policy of “unconscious racism.”

The possibility that such an “unconscious racism” led to the crack/cocaine sentencing disparity is not the only problem that plagues the Federal approach to crack cocaine. Another problem that has long been recognized - but never fixed - is that the applicable drug statutes and the Guidelines use different definitions of “cocaine base” - a fact that has led to great confusion in and disagreement among the Circuits as to when to apply the enhanced penalty provisions applicable to “crack cocaine” - which is just one form of “cocaine base.”

Thus, the principal relevant drug statute, 21 U.S.C. § 841(b)(1)(A)(iii), calls for the imposition of a mandatory minimum sentence for crimes involving “cocaine base” - a term that is not defined in the statute. The principal relevant Guideline provision, U.S.S.G. § 2D1.1(c), also provides for increased penalties (in the form of heightened base offense levels) for crimes involving “cocaine base” - and that term is defined in the Guidelines. Note D to § 2D1.1(c) provides as follows:

“‘Cocaine base,’ for the purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.”

The absence of a definition in the statute and the presence of a limiting definition in the Guidelines has led, not surprisingly, to different legal definitions of “cocaine base” and has generated great discord among the Circuits as to whether the term “cocaine base” must be interpreted consistently under both § 841(a) and the § 2D1.1(c) of the Guidelines. The decision in this case contains a detailed discussion of the inter-Circuit split on that issue.

In the instant case, Carl Edwards pled guilty to two counts of possession with intent to distribute more than 50 grams of a substance containing cocaine base, but he reserved the right to contest the nature of the substance involved. After hearing testimony on the issue at Edwards’ sentencing hearing, the district court found, by a preponderance of the evidence, that the substances found in Edwards’ possession were “a noncrack form of cocaine base.” However, relying on a Third Circuit decision, the district court also concluded that the statutory mandatory minimum applies to all forms of cocaine base - not just crack - and thus it imposed two concurrent ten-year terms of imprisonment.

On appeal, the Seventh Circuit reversed. Relying on its earlier decision in U.S. v. Booker, 70 F.3d 488 (7th Cir. 1995), the Court held that the mandatory minimum for crack will not apply if the evidence merely establishes that the substance in question is cocaine base. [Note: The 7th Circuit’s 1995 Booker decision is herein referred to as “Booker 1995,” in order not to be confused with the more recent and more famous Booker case decided by the Supreme Court on Jan. 12, 2005.]

In Booker 1995, the Court looked to legislative history and concluded that Congress, when it put higher penalties on "cocaine base," was attempting to deal with "crack." Hence, it concluded that the government must do more than establish that the substance is cocaine base; it must demonstrate that it is "crack." Thus, the Court remanded for resentencing, at which the statutory mandatory minimum would not apply.

In rendering its decision, the Court acknowledged that its ruling maintained a split among the Circuits and called for intervention by either the Supreme Court or the Congress. But it provided a detailed roadmap to the differing views of the Circuits on whether the mandatory minimum sentence in § 841(b) applies, like the Guidelines, to crack offenses only. The Court stated:

“We acknowledge a significant division among the circuits on this issue, with no clear majority rule and at least three distinct approaches. Some circuits have held, like Booker [1995], that the mandatory minimum sentence under the statute applies only to crack, based in whole or in part on the legislative history of the 1986 Anti-Drug Abuse Act. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir.1995) (relying on analysis of statutory language as well as legislative history); United States v. Crawford, 83 F.3d 964, 965 (8th Cir. 1996) (agreeing with analysis of legislative history in Booker 1995). As we have discussed, the Eleventh Circuit reached the same conclusion by a different route in [U.S. v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994)], holding that by allowing the amended definition in the Guidelines to take effect, Congress approved the new ‘crack only’ definition for purposes of the statute as well. Munoz-Realpe, 21 F.3d at 377.

“The Sixth Circuit in United States v. Levy, 904 F.2d 1026 (6th Cir. 1990), appears to have reached the conclusion that "cocaine base" in the statute means crack (‘Levy recognizes the congressional intent behind the insertion of the phrase 'cocaine base' was to impose stiffer sentences upon those who traffic in crack cocaine,’ id. at 1033), but the court simply assumed that cocaine base and crack are equivalent in all senses.

“The Ninth Circuit has limited the term ‘cocaine base’ to ‘cocaine that can be smoked,’ which includes but might not be limited to crack (the court's opinion was unclear on this point). United States v. Shaw, 936 F.2d 412, 415-16 (9th Cir. 1991) (relying on legislative history). The District of Columbia Circuit has rejected the argument that the term "cocaine base" should be read literally to include anything that chemically constitutes base cocaine, but has declined to adopt the ‘crack only’ definition. United States v. Brisbane, 361 U.S. App. D.C. 287, 367 F.3d 910, 913-14 (D.C. Cir. 2004). The court in Brisbane reviewed the legislative history of the statute and found ‘much evidence’ that Congress ‘was targeting crack,’ but at the same time found it ‘unlikely that Congress intended to limit the enhanced penalty provision to one manufacturing method.’ Id. at 913. The court cited Shaw with approval, finding merit to its interpretation that "'cocaine base” means any cocaine that is smokable.’ Id. at 914 (‘The Ninth Circuit's approach avoids the difficulties inherent in the “literal” approach while not unduly narrowing the operation of the statute.’). In the end, however, the Brisbane court concluded that it ‘need not choose between the two options because both lead to the same result. Here the government did not prove that the substance distributed was smokable and it did not prove that it was crack.’ Id.

“Other circuits are diametrically opposed to Booker 1995. The Second Circuit acknowledged that in passing the mandatory minimum sentence for cocaine base Congress was concerned with the problem of crack. United States v. Jackson, 968 F.2d 158, 162 (2d Cir. 1992). But the court concluded that by using the chemical name, cocaine base, rather than the colloquial name, crack, Congress intended not to limit application of the enhanced penalties to crack alone, and nothing in the legislative history dispelled that plain-language reading. Id. In Barbosa, the opinion adopted by the district court here, the Third Circuit held that passage of the 1993 guideline amendment did nothing to cast doubt on the plain meaning of the statutory text, which does not limit cocaine base to the form known as crack. [U.S. v. Barbosa, 271 F.3d at 438 (3rd Cir. 2001)]. The Fifth Circuit has held that the term ‘cocaine base’ in § 841(b) encompasses noncrack forms of cocaine base. United States v. Butler, 988 F.2d 537, 542-43 (5th Cir. 1993). The Tenth Circuit has adopted the Second Circuit's conclusion in Jackson without elaboration. United States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992).

“And, finally, in United States v. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992), the First Circuit initially held that ‘cocaine base’ for purposes of § 841(b) means ‘crack,’ but on rehearing retreated from that position: ‘Although we continue to believe that Congress indeed was concerned primarily with the crack epidemic in enacting the legislation, the Government now persuades us that it does not necessarily follow that the term “cocaine base” includes only crack.’ Lopez-Gil, 965 F.2d at 1134.

In the end, the Court urged Congress or the Supreme Court to resolve the “lingering and stratified circuit split on a matter of such importance to the administration of criminal justice,” but in the meantime it reaffirmed its holding in Booker 1995 that, for purposes of the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), the phrase "cocaine base" refers to cocaine base that constitutes crack.

In Brief

Prisoners’ Rights: Taylor v. Sebelius, 350 F.Supp.2d 888 (D.Kan. 12/29/04) - This is an interesting prisoners’ rights case in which Judge Vratil rejected a series of claims challenging the constitutionality of a state regulation imposing a $25 monthly supervision fee on parolees. She specifically held, inter alia, that the state statute did not violate the Bill of Attainder Clause; did not violate the petitioner’s rights under the Equal Protection Clause; and, as applied to the petitioner, did not constitute a violation of his rights under the Ex Post Facto Clause;

Drew v. Menifee, 2005 U.S. Dist. LEXIS 3423 (S.D.N.Y. Feb. 25, 2005) - The BOP has been trying, since December 2002, to change its policy about placing inmates in community confinement centers (CCCs) - which are better known as “halfway houses” - and it still can’t seem to get it right. Out of the blue, the BOP’s Office of Legal Counsel announced that its “decades long policy” was wrong, and that, henceforth, inmates could be designated to a CCC for the lesser of six months or 10% of the inmate’s sentence. That new policy spawned a substantial amount of litigation across the country; and most of the courts agreed that the BOP’s sudden reinterpretation of the law suffered from a series of fatal flaws. In response to those lawsuits, the BOP put together a new rule, 28 C.F.R. § 570, which became effective on 2/14/05. The petitioner in the instant case challenged the new variation of the BOP’s interpretation of the statutes.

After an outstanding, comprehensive review of the background and legal history of the BOP’s efforts to rewrite the law, Magistrate Judge Pitman concluded that the new rule did cure some of the defects noted by many of the judges, but it still suffered from a number of fatal flaws. He wrote: “The principal problem with the 2-14-05 Rule is that it does not consider any of the factors that the BOP, in the words of the Senate Committee on the Judiciary, ‘is specifically required’ to consider. With respect to the possibility of placement in a CCC prior to the last ten per cent or six months of the prisoner's sentence, the 2-14-05 Rule simply posits a uniform rule that entirely ignores Section 3621(b)'s command. No consideration is given to the prisoner's offense of conviction, the prisoner's history and characteristics or any of the other factors identified in the statute.”

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