Vol. 12, No. 16	Covering Cases Published in the Advance Sheets through Apr. 18, 2005

Booker

• Showing no signs of slowing down, last week there were 106 new lower court decisions interpreting Booker - bringing the total to 918 Booker decisions (published and unpublished) since Jan. 12, 2005; and an 36 additional decisions vacated and remanded by the Supreme Court, raising to 687 the number of cases remanded to date by the Supreme Court.

  Among the most noteworthy of last week’s lower court Booker decisions were the following: U.S. v. Williams - a highly provocative decision from Judge Presnell of the M.D.Fla. in which he sharply criticized the Government’s policy of paying lip service to Booker by advocating that any sentence, other than a Guideline sentence, “would be unreasonable (and thus illegal)” - an approach which he said stemmed from the Department of Justice’s “pretense of omniscience”; U.S. v. Goldberg - a decision in which Judge Posner of the Seventh Circuit strongly suggested that, in his view, there are no due process concerns about a post-Booker sentence increase based on pre-Booker conduct; U.S. v. Davis - a decision from the Eleventh Circuit in which the Court rejected the Government’s argument that a Booker error was rendered harmless by the § 5K1.1 it filed; and a series of decisions from a number of Circuits holding that waivers of appeal are not invalidated merely because of a change in the law such as occurred as a result of the Blakely/Booker line of decisions.

Sex Offenders - No Place to Live

• In Doe, a three judge panel from the Eighth Circuit reversed a lower court decision which declared unconstitutional an Iowa law that prohibits persons convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility. The panel rejected a series of constitutional challenges to the law (which is now common in 13 states), even though it acknowledged that the restricted areas in many cities encompasses the majority of the housing in those cities - and in some cases makes entire towns off limits to convicted sex offenders.
  

The Limits on the Imposition of Occupational Restrictions at Sentencing

• In Souser, the Tenth Circuit held that the district court had erred when it imposed an employer notification requirement on the defendant, as a standard condition of probation, without considering whether the imposition of that obligation comported with the provisions of U.S.S.G. § 5F1.5.

A New Constitutional Challenge to the AEDPA

• In a briefing order that has attracted a lot of attention, a divided panel from the Ninth Circuit in the Irons case has directed counsel to argue whether a key provision of the Antiterrorism and Effective Death Penalty Act of 1996 unconstitutionally infringes upon the separation of powers doctrine - an argument that is bound to inflame the passions of many who already believe that the courts are too activist.

U.S. v. Booker - Update

We passed the century mark this past week with 106 new lower court decisions (published and unpublished) interpreting the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005). We continue to list all of the new cases in alphabetical order on our special Booker Resource Center on the Internet at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/, where we also post the full text and brief summaries of all the significant new Booker decisions for each of the Circuit Courts of Appeal, listed by Circuit.

Certainly the most provocative of the many new decisions reported last week was Judge Presnell’s Sentencing Opinion in U.S. v. Williams, 2005 U.S. Dist. LEXIS 8178 (M.D.Fla. 05/05/05). That case involved the sentencing of Aaron Williams, a 29 year “petty drug dealer” who was caught in a Government sting selling 34 grams of crack to an undercover agent. Judge Presnell noted that Williams had engaged in a “consistent pattern of criminal conduct since age 16,” and the Feds were “frustrated with the state’s lenient treatment of [his] drug offenses”; so it set up the drug buy to assure that he would get an appropriate sentence - i.e., 360 months to life.

While no summary of this ruling can capture its true flavor, the excerpts below will show the nature of Judge Presnell’s unusually blunt castigation of the Government’s efforts to control and direct the entire sentencing process. He wrote, in part:

“[T]he government argued that any sentence, other than a guideline sentence, would be unreasonable (and thus illegal). This contention is consistent with the policy of the Department of Justice to oppose as unreasonable any sentence that falls below the applicable guideline sentencing range, save those the Department authorizes in its sole discretion. . . .

“The government's policy, however, is at odds with Booker. In essence, the Department of Justice continues to treat the guidelines as mandatory, by asserting that the Court has no discretion to deviate therefrom. Thus, while paying lip service to Booker and the statute, the government flouts the efficacy of the Supreme Court's opinion. . . .

“One of the factors that the Court is instructed to consider in fashioning a reasonable sentence is to ‘promote respect for the law.’ 18 U.S.C. § 3553 (a)(2)(A). Yet, the government itself shows no respect for the rule of law when it consistently advocates a policy which ignores a specific pronouncement of our nation's highest court.

“The crux of the government's position appears to be an effort to completely usurp the Court's sentencing function. The government already wields substantial authority over the sentencing process by reason of its discretion in the way it investigates, charges and prosecutes criminal conduct. Now, it seeks to control the end result as well by strictly limiting the Court's discretion to a guideline sentence.

“Criminal behavior can fuel public outcry and drive broad legislative and executive agendas to get ‘tough on crime.’ But how does that translate to specific instances? If you take a matrix to factor offense severity, overlay it with mandates born of popular outrage, and tailor it purportedly to address almost every eventuality, you get ‘justice’ dictated in advance, marked by visceral condemnation, and based on the pretense of omniscience.

“Under Booker, the sentencing guidelines no longer stand as such a mandatory ideal. In a very real sense, however, the executive branch is continuing to campaign for such a supposedly scientific equation of justice, without mentioning the wholly unscientific and overwhelming discretion it exercises over the sums that equation produces. In that regard, the executive wants to be prosecutor and judge. And, in a display of its wisdom and qualifications for that lofty job, the executive arbitrarily claims that any sum lesser than what it contrives is unreasonable and contrary to law.”

Three cheers to Judge Presnell for his courageous comments, even if we are concerned about the backlash that he will surely face from Congress and the Department of Justice for being so outspoken.

In other significant Booker developments, we note Judge Posner’s decision in U.S. v. Goldberg, 2005 U.S. App. LEXIS 7776 (7th Cir. 05/05/05) - where he forcefully suggested that nothing in the law prevents a judge from increasing a defendant’s sentence on a Booker remand. Numerous commentators have suggested that there are both due process and ex post facto arguments that a post-Booker sentence for a crime committed prior to Jan. 12, 2005, cannot be higher than the top of the applicable guideline range. (See, e.g., “Draft Sentencing Objection/Memorandum of Law to Limit Retroactive Application of Booker,” prepared by the Office of the Federal Public Defender (N.D.Fla.), a copy of which has been posted on our Website.)

In the first extensive judicial comments that we have seen on that topic, Judge Posner wrote:

"We were surprised to learn that Goldberg's lawyer and — we understand from him, and from the argument of another criminal defense lawyer in an appeal argued before us the same day — other members of the defense bar as well believe that a sentence meted out in the pre-Booker era of mandatory guidelines is the ceiling in the event of a resentencing unless there are changed factual circumstances, such as additional criminal conduct by the defendant. If there are no such changed circumstances, Goldberg's lawyer told us, the inference would arise that any heavier sentence imposed on remand was vindictively motivated and therefore improper. That is a misunderstanding, and it is a misunderstanding dangerous to criminal defendants. When there is no relevant legal or factual change between sentence and resentence, the motive for an increase in punishment is indeed suspect. But Booker brought about a fundamental change in the sentencing regime. The guidelines, mandatory when Goldberg was sentenced, are now advisory. Were he to be resentenced, it would be under a different standard, one that would entitle the judge to raise or lower the sentence, provided the new sentence was justifiable under the standard of reasonableness. No inference of vindictiveness would arise from the exercise of the judge's new authority."

In U.S. v. Davis, 2005 U.S. App. LEXIS 7701 (11th Cir. May 4, 2005) the Eleventh Circuit vacated a drug sentence where no drug quantity had been admitted by the defendant. The Government argued that any Booker error had been eliminated or rendered harmless by a § 5K1.1 motion it had filed. In rejecting that argument, the Court stated:

“The flaw in the Government's argument is that the grant of § 5K1.1 did not give the sentencing court ‘unfettered’ discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered. This Court had previously stated, ‘When, on the Government's motion, a district court grants a downward departure under U.S.S.G. § 5K1.1 . . ., the sentence reduction may be based only on factors related to the defendant's substantial assistance.’ United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996). While the sentencing court had discretion under § 5K1.1 in deciding whether to depart from the guidelines and the extent of that departure, it did not have the discretion to consider factors unrelated to the nature and type of Davis's assistance. Importantly, the sentencing court could not permissibly consider the sentencing factors announced in 18 U.S.C. § 3553(a) when exercising its discretion.

“We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553(a). Therefore, the Government cannot meet its burden of showing that the mandatory application of the guidelines in violation of Davis's Sixth Amendment right was harmless beyond a reasonable doubt.”

Doe v. Miller, No. 04-1568 (8th Cir. 04/29/05) (Judge Colloton)

The leper colonies are back! To deal with convicted sex offenders who are released from prison, a growing number of states have been seizing on a legislative fix that severely restricts the ability of those felons to reside in most communities. This case addresses some of many legal and social issues involved in those laws; and it shows that, more and more, sex offenders are forced to live as outcasts - far from friends are relatives - the one source of support they can count on to hasten their return to society.

At issue in this case was a law enacted by the state of Iowa which prohibits persons convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility.

[As a matter of interest, that law is similar in purpose and scope to similar laws that have already been enacted in a dozen other states - namely, Alabama, Arkansas, California, Florida, Georgia, Illinois, Kentucky, Louisiana, Ohio, Oklahoma, Oregon and Tennessee - although, in some of those states, the prohibition covers working or even any “presence” within the proscribed geographical area.]

The plaintiffs in the instant case challenged the constitutionality of the Iowa law on a number of constitutional grounds. They argued, inter alia, that the law violated their procedural due process and substantive due process rights - since some cities were unable to provide sex offenders with information about the location of all schools and registered care facilities. They also argued that the law violated their constitutional right to travel interstate and intrastate; that it violated their privileges against self-incrimination; and that it violated the Ex Post Facto Clause.

In a lengthy decision reported at Doe v. Miller, 298 F. Supp. 2d 844, 851 (S.D. Iowa 2004), Judge Pratt declared the statute unconstitutional on several grounds and he enjoined the Attorney General of Iowa and the ninety-nine county attorneys in Iowa from enforcing the prohibition. On appeal, the Eighth Circuit reversed, holding:

“Because we conclude that the Constitution of the United States does not prevent the State of Iowa from regulating the residency of sex offenders in this manner in order to protect the health and safety of the citizens of Iowa, we reverse the judgment of the district court. We hold unanimously that the residency restriction is not unconstitutional on its face. A majority of the panel further concludes that the statute does not amount to unconstitutional ex post facto punishment of persons who committed offenses prior to July 1, 2002, because the appellees have not established by the ‘clearest proof,’ as required by Supreme Court precedent, that the punitive effect of the statute overrides the General Assembly's legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety.”

While the panel delved into each of the constitutional arguments raised, we note three social problems that such legislation poses for the sex offender community.

First, such laws often prohibit the felons from living with relatives. Many convicted criminals - and especially those convicted of sex offenses - are unable to find jobs. As a result, their only viable option is the generosity of friends and family - an option that these laws now eliminate for many, many persons.

Second, these residency laws often mean that the sex offender will have difficulty finding housing anywhere! As the court acknowledged in the instant case, “the district court found that the restricted areas in many cities encompass the majority of the available housing in the city, thus leaving only limited areas within city limits available for sex offenders to establish a residence. In smaller towns, a single school or child care facility can cause all of the incorporated areas of the town to be off limits to sex offenders. The court found that unincorporated areas, small towns with no school or child care facility, and rural areas remained unrestricted, but that available housing in these areas is ‘not necessarily readily available’."

Third, because sex offenders are also subjected to strict registration and reporting requirements, they face an administrative nightmare of coordinating the reporting requirements with the residency and travel restrictions that these laws create - even for short term moves as the sex offender seeks to comply with the 2000 foot rule.

Without question, sex crimes against minors are a terrible scourge that must be addressed. Without question also, the problems of dealing with sex offenders who are released from prison are not easy to solve; and they are intense. However, we question whether it is fair to permanently banish to a desert leper colony - never again free to travel the country - every person ever convicted of having pornography on his or her computer. That approach - while certainly easy and politically appealing - simply fails to address some of the many very real social and practical concerns that will face this growing segment of our population. We welcome any feedback from our readers on this explosive and emotional topic.

U.S. v. Souser, No. 04-1101, (10th Cir. 05/04/05) (Judge Tacha)

The defendant in this case pled guilty to one count of making a false statement to the Government, in violation of 18 U.S.C. § 1001, arising out of her receipt of Federal rent subsidies to which she was not entitled. The district court imposed a sentence of five years probation. In addition, stating it was both consistent with the requirements of U.S.S.G. § 5B1.3 and required by local court policy, the court also directed the defendant to inform her employer of her criminal history, or the probation officer would.

The defendant appealed, challenging the district court’s authority to impose that occupational restriction on her without complying with the conditions specified in U.S.S.G. § 5F1.5 (which require the court to find that (a) there is a reasonable “direct relationship” between the defendant’s job and her crime of conviction; and (b) the restriction is reasonably necessary to protect the public).

The district court did not make those findings in this case because, in 1995, the judges of the D.Colo. informally approved the employer notification provision as an automatic and standard condition of probation.

On appeal, the Tenth Circuit vacated the special condition of probation and held that the employer notification provision could not be imposed without making the findings required by § 5F1.5. The Court also found that the District’s policy was invalid because it “runs contrary to statute.” It stated that the District’s informal policy of requiring employer notification for all defendants was “in direct conflict” with the provisions of the governing statute - 18 U.S.C. § 3563(b) - and was “contrary to the plain text of the Guidelines.” Finding that the district court’s error was not harmless, the Court vacated the defendant’s sentence and remanded for resentencing.

Imagine, a district court sentencing policy - in effect for 10 years and approved by all the district judges - is finally held to be invalid!

Some thoughts on the size and purposes of the America penal system

In the past few weeks, three seemingly unrelated items have raised fresh questions about the size and accomplishments of America’s huge and ever growing prison system.

First, the sheer numbers: The Bureau of Justice Statistics has released its Annual Survey of America’s prison population. In mid-2004, even though the crime rate has fallen over the past decade, the nation’s prison population increased by 2.3 percent - to a total of 2.1 million people being held in America’s prisons and jails. Put another way, one in every 138 residents in America was in prison or jail; and, even worse, nearly 60 percent of prison and jail inmates were racial or ethnic minorities. Commenting on those statistics, the Justice Policy Institute observed that the United States has the highest rate of incarceration in the entire world - with a gigantic lead over all the other countries - including places as China and Nigeria.

Second, despite concerns about high recidivism rates, we continue to do nothing to rehabilitate our prisoners and prepare them for a return to society. Recently, a representative for the Council of Prison Locals aptly observed,“We feel like we’re just warehousing prisoners now . . . That’s what we feel the White House wants us to do — warehouse prisoners, put them in a box.” (Quoted from, "Bureau of Prisons Update: More Beds, Less Rehabilitation," by Todd Bussert and Joel Sickler, The Champion, March 2005.)

Finally, to help put all these numbers in perspective, the Sentencing Project recently issued a new Report entitled "The War on Marijuana: The Transformation of the War on Drugs in the 1990s." That Report indicates that “since 1990, law enforcement priorities have become heavily skewed toward arresting low-level marijuana offenders as part of the ‘war on drugs’ strategy.” Among some of the more notable findings contained in this Report were the following:

• 82% of the 450,000 increase in drug arrests since 1990 has been for marijuana offenses, and 88% of this rise has been for possession offenses;

• Marijuana arrests now total 700,000 a year nationally, representing 45% of all drug arrests;

• Arrests for marijuana offenses rose by 113% from 1990 to 2002, while arrests for all other drug offenses increased by just 10%; and

• While African Americans constitute an estimated 14% of regular marijuana users, blacks are 30% of persons arrested for marijuana violations.

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