Vol. 12, No. 15
Covering Cases Published in the Advance Sheets through Apr. 11, 2005

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Booker

Supreme Court


Booker Boxscore
Past Week's New Decisions -  92 Total Since Jan. 12, 2005 -  812

U.S. v. Booker - Update

The already busy pace of post-Booker events seems to be increasing exponentially. In the past two weeks alone the number of new published and unpublished lower court decisions addressing the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) has jumped some 22% to a total of 812 reported decisions. A full alphabetical listing of all of those cases is set forth on our special Booker Resource Center on the Internet at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/ - where we have also posted the full text and brief summaries of all the significant new Booker decisions for each of the Circuit Courts of Appeal, listed by Circuit.

We have also posted on our Web site some helpful new resources for the criminal defense bar, including two outstanding contributions prepared by David L. McColgin, the Supervising Appellate Attorney from the Federal Defender’s Office in the E.D.Pa., namely, a 75-page Booker Litigation Strategies Manual (revised as of April 20, 2005), and a Model Sentencing Memorandum.

There are a number of new resources relating to the stealth attack that some Members of Congress have been mounting on Booker through a package of proposed legislative changes to a bill known as H.R. 1528 - one of those “no-one-would-dare-to-oppose” bills with the crowd-pleasing (but misleading) name of “Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004.” Perhaps the most significant of those new materials is the letter, dated April 25, 2005, from the Committee on Criminal Law of the Judicial Conference of the United States to the House Committee of the Judiciary in which Judge Sim Lake, the Chair, wrote:

“The judiciary is very concerned that the sentencing provisions of Section 12 of H.R. 1528 were included without supporting data or consultation with the judiciary. Because there is no demonstrable need to consider possible legislative responses to Booker at this time, and because, as explained below, Section 12 does not represent a sound alternative to the present advisory guideline System, the Judicial Conference strongly opposes this proposal.”

Among the many new reported judicial decisions, we note the opposite approaches taken by the Third and Eighth Circuits on how to handle appeals based on Booker:

U.S. v. Davis, 2005 U.S. App. LEXIS 7333 (3rd Cir. Apr. 28, 2005) (en banc) (Judge Scirica) - In this case, the Third Circuit has finally spelled out its views regarding remands for resentencing in light of Booker. In rejecting the Government’s motion for an en banc rehearing of an earlier decision that ordered a resentencing for three defendants, the Court essentially held that all cases anywhere in the appellate pipeline at the time Booker was decided will be sent back for resentencing. In short, the Court held that the test for plain error is met in any case in which the court followed the mandatory guidelines in imposing sentence. The Court explained:

“[W]e cannot ascertain whether the District Court would have imposed a greater or lesser sentence under an advisory framework. But the mandatory nature of the Guidelines controlled the District Court’s analysis. Because the sentencing calculus was governed by a guidelines framework erroneously believed to be mandatory, the outcome of each sentencing hearing conducted under this framework was necessarily affected. Although plain error jurisprudence generally places the burden on an appellant to demonstrate specific prejudice flowing from the District Court’s error, in this context, where mandatory sentencing was governed by an erroneous scheme, prejudice can be presumed.”

The Court also concluded that from the standpoint of judicial economy, it makes much more sense to remand such cases for resentencing rather than to spend judicial resources endlessly litigating plain error issues, as other circuits are doing. The Court stated:

Booker applies to all cases pending on direct review. By remanding, we ensure that each defendant to whom Booker applies is sentenced accordingly. This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, ‘correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]’ on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

“In this opinion, we express no view on waiver or alternative sentences. We will continue to review each appeal individually. Appellants have been directed to state whether they wish to challenge their sentence under Booker. For those who do not, we consider the appeal on its merits. Where an appellant raises a Booker claim and establishes plain error, however, we will decide claims of error related to the conviction, vacate the sentence, and remand for consideration of the appropriate sentence by the District Court in the first instance.”

U.S. v. Pirani, 2005 U.S. App. LEXIS 7445 (8th Cir. Apr. 29, 2005) (Judge Loken) (en banc) - The Eighth Circuit took an opposite view of the Booker plain error debate with this en banc decision. Here, over the dissent of four judges, the majority of the court held:

"In this case, we apply the Supreme Court's recent decision in United States v. Booker, 160 L. Ed. 2d 621, 543 U.S., 125 S. Ct. 738 (2005), to a sentencing error that defendant Louis F. Pirani failed to preserve in the district court. Having carefully considered the divergent analyses of our sister circuits, we follow decisions of the First, Fifth, and Eleventh circuits in holding that a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice under controlling Supreme Court precedents, that is, a ‘reasonable probability’ that the district court would have imposed a more favorable sentence under the advisory sentencing guidelines regime mandated by Booker. As Pirani has not met that burden, we affirm."

Almost as noteworthy as the majority’s holding were the comments of two of the dissenting Judges about the three different approaches that have developed in the Circuits for determining whether a defendant is entitled to any relief based on claims of Blakely/Booker errors. First, in his partial dissent, Judge Bye observed:

“The phrase ‘three-ring circus’ (referring to the three-way circuit split) has been used to describe the federal circuits' disparate handling of Booker pipeline cases. Such a phrase is descriptive, nonetheless, it is probably more appropriate to characterize the split as a three-ring circus with twelve unique acts each attempting to dazzle us with its compelling logic. Yet, despite the unique nature of each act, like the conspicuous facial hair on the bearded lady, one common theme prevails - the undeniable difficulty in assessing the prejudice suffered by any particular defendant.”

In his separate dissent, Judge Heaney called upon the Supreme Court to intercede in that debate, writing:

“The stated goal of the Guidelines was to create ‘a system that diminishes sentencing disparity.’ Booker, 125 S. Ct. at 759. This goal is undermined when circuits apply different standards in determining whether a defendant sufficiently preserved his Sixth Amendment sentencing challenge in the district court, and is further undermined when circuits differ on the question of how to deal with Booker claims on plain error review. Hopefully, the Supreme Court will promptly resolve these differences, and do so in a manner true to the essence of Booker's concern for basic rights of the defendant under the Sixth Amendment.”

The Second Circuit issued a number of Booker pronouncements this past week, including a blanket order designed to facilitate Booker appeals; and another decision by Judge Newman which addressed a number of Booker "pipeline" issues that were not resolved in his Crosby plain error opinion for the Court.

First, on April 29, 2005, the Second Circuit promulgated a special blanket order relating to criminal cases on direct appeal and motions for a Crosby remand. Chief Judge John Walker directed that:

“In cases pending on direct review involving appeals of sentences imposed prior to United States v. Booker, 125 S. Ct. 738 (2005), in which the sentencing judge's error in applying the Sentencing Guidelines mandatorily was not preserved for appellate review by an appropriate objection, the Court will be receptive to motions agreed to by all parties to the appeal to remand pursuant to United States v. Crosby , 397 F.3d 103 (2d Cir. 2005), without the need for briefing of the merits of the appeal. However, any panel to which such motions are presented has the prerogative to dispose of such motions as the panel deems appropriate."

Then, in U.S. v. Fagans, 2005 U.S. App. LEXIS 7176 (Apr. 27, 2005) (Judge Newman), the Court addressed three specific Booker questions, namely: (1) whether to remand for resentencing, rather than for consideration of whether to resentence, where an objection to the compulsory use of the Sentencing Guidelines has been preserved for review; (2) whether, in some circumstances, to review the correctness of a Guidelines calculation now that the compulsory nature of the Guidelines has been eliminated; and (3) whether the calculation was correct in this case. In response to those questions, the Court held that "the Guidelines calculation should now be reviewed, that the calculation was correct, and that the case should be remanded for resentencing because the District Court understandably but erroneously applied the Guidelines in a compulsory manner and the Defendant preserved his objection to that error."

As more fully explained by Yuanchung Lee, one of the frequent contributors to the Second Circuit Blog, the primary holding of the Fagans court is that where the defendant at sentencing contended that certain Guidelines enhancements - including those based on facts concerning his criminal history - could not be applied in light of the Supreme Court’s earlier ruling in Blakely v. Washington, then a subsequent Booker claim is considered preserved on appeal; and the defendant is therefore entitled to a full resentencing - “with the defendant present and perhaps an updated PSR” - and not just a Crosby remand where the district court decide on its own whether it would have imposed a materially different sentence had it been aware of the Booker regime of advisory Guidelines.

Finally, we note that the United States Sentencing Commission has recently published its 2003 Sourcebook of Federal Sentencing Statistics - a comprehensive compilation of sentencing data which, properly used, can be of great help to the criminal defense lawyer in this post-Booker sentencing era. It contains amazing details on numerous historical sentencing figures such as the “Average Length of Imprisonment in Each General Crime Category” and the “Percent of Offenders Receiving Each Type of Departure.”


Quote of the Week

Uzbekistan, Torture, and Rendition

“The New York Times reports that there is ‘growing evidence that the United States has sent terror suspects to Uzbekistan for detention and interrogation’ as part of the government's rendition program. It appears that the United States transported dozens of prisoners to Uzbekistan.

“While the Bush administration claims it has no reason to believe that foreign governments participating in the rendition program mistreat prisoners, that claim cannot credibly be made with regard to Uzbekistan. According to a State Department human rights report issued in 2001:

The police repeatedly tortured prisoners, State Department officials wrote, noting that the most common techniques were ‘beating, often with blunt weapons, and asphyxiation with a gas mask.’ Separately, international human rights groups had reported that torture in Uzbek jails included boiling of body parts, using electroshock on genitals and plucking off fingernails and toenails with pliers. Two prisoners were boiled to death, the groups reported. The February 2001 State Department report stated bluntly: ‘Uzbekistan is an authoritarian state with limited civil rights.’

“The decision to make Uzbekistan ‘a partner in the global fight against terrorism’ reveals the administration's utter lack of concern for human rights.” From TalkLeft.com, April 30, 2005.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

td>
Court
This Week
Year to Date
Since 1996
Courts of Appeal
54
643
21,830
District Courts
29
393
12,207

 


Copyright © 2005 Punch and Jurists, Ltd.