Vol. 13, Nos. 9 & 10	Covering Cases Published in the Advance Sheets through Mar. 3, 2006

The Supreme Court Ducks the Padilla Case - Again

• The Supreme Court denied the petition for a writ of certiorari sought by Jose Padilla, in the latest round of this seemingly interminable litigation over the Government’s power to detain, without charge, U.S. citizens arrested on U.S. soil, who have been designated as “enemy combatants” by the President. Some Justices noted that new criminal charges recently filed against Padilla had rendered "moot" his challenges to the President’s powers of executive detention, on the grounds that, even if the Court were to rule in Padilla's favor, his present custody status would be unaffected.
  
  

Executive Detention - Continued

• The Nadarajah case from the Ninth Circuit is another astonishing example of the power of executive detention run amok in America. Here the Court held that the Government’s five-year detention of an alien, who was suspected of being a member of a foreign terrorist organization, was “unreasonable, unjustified, and in violation of federal law” and that the Government’s legal arguments in support of his indefinite detention were “patently absurd.”
  

Sentencing and Guidelines Issues

• In Saenz, Judge Bennett of the N.D.Iowa wrote a noteworthy and must-read critique of some of the prevailing sentencing policies and practices in cases involving downward departures based on a defendant’s substantial assistance to the Government. Here, after the Eighth Circuit concluded that a 50 percent sentence reduction for a defendant’s cooperation was both excessive and unreasonable, Judge Bennett concluded that the Circuit Court’s ruling was legally incorrect; and, after lecturing that Court on the proper bases and parameters for such a sentence, he reimposed the same 50 percent reduction - an act of defiance that will probably be quickly addressed by the Circuit Court.
  
  
• In Milam, a divided panel from the Fourth Circuit held that facts stated in a presentence report may not, at sentencing, be deemed to be admissions by the defendant sufficient to bypass the Sixth Amendment right to a jury trial as articulated in U.S. v. Booker, even though the defendant, who had been given the presentence report before sentencing, did not object to the facts at issue. Thus, splitting with decisions from the Sixth and Eighth Circuits, the Court held that the district court had committed reversible error by relying on facts stated in the presentence report to enhance the defendant's sentence beyond the statutory minimum, even though the defendant did not raise any objection to the presentence report.
  
  

District Courts Are Not Permitted To Reject Valid Guilty Pleas

• In the Vasquez-Ramirez case, the Ninth Circuit held that, so long as a plea agreement meets the requirements of the Federal Rules of Criminal Procedure, a district court does not have the authority to reject that plea, even if it disagrees with the sentencing range to which it would otherwise be limited, since such a rejection “intrudes too far into the executive function.”

Padilla v. Hanft, No. 05-533 (U.S.S.C. April 3, 2006) (Per Curiam)

For the second time in two years, the Supreme Court has declined to review an issue that has become one of the centerpieces of the current Administration’s war on terrorism - namely executive detention. More specifically, in the words of Justice Ginsburg, the issue before the Court was: “Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an ‘enemy combatant’?”

Here, over the dissent of Justices Ginsburg, Souter and Breyer, the Court denied the petition for a writ of certiorari filed in the case of Padilla v. Hanft, 423 F.3d 386 (4th Cir. Sept. 9, 2005). In order to understand the significance of that ruling, it is necessary to understand some of the history of this case.

Jose Padilla, an American citizen, was arrested at Chicago's O'Hare International Airport on May 8, 2002. He was initially transported to New York on a material witness warrant; but, from the outset, the Government made clear that Padilla was really being held for his alleged participation in a plot to explode a “dirty bomb” in the United States.

Almost as soon as counsel interceded on his part, the President quickly designated Padilla an “enemy combatant” and ordered him removed to a military prison, beyond the reach of the Federal courts. Padilla was then transferred to a Navy brig in South Carolina, where he was held for more than three years. Throughout a series of protracted court proceedings, Padilla challenged the right of the President to detain him, indefinitely, without charge and without any constitutional rights or protections.

After the Second Circuit agreed that his detention was illegal, the case was appealed to the Supreme Court; and, in Rumsfeld v. Padilla, 542 U.S. 426 (June 28, 2004) (Padilla I), the Court, by a 5-to-4 vote, held that the Second Circuit lacked jurisdiction to hear the case since, by the time the case came before the Circuit Court, Padilla had been transferred to a Navy brig in South Carolina.

Writing for the four dissenting Justices, Justice Stevens criticized the majority for failing to address the merits of the Padilla’s claims which, he wrote, raise questions “of profound importance to the nation.” He continued:

“At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.”

So the case started over again; and in Padilla v. Hanft, 389 F.Supp.2d 679 (D.S.C. Feb. 28, 2005) (Padilla II), Judge Harry Floyd held that President Bush “has no power, neither express nor implied, neither constitutional nor statutory, to hold [Padilla] as an enemy combatant"; and he warned that “[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Then, in Padilla v. Hanft, 423 F.3d 386 (4th Cir. Sept. 9, 2005) (Padilla III), the Fourth Circuit held that the 2001 Congressional Authorization for Use of Military Force Joint Resolution ("AUMF") granted the President the authority to designate an American citizen captured on American soil as "enemy combatant" and to detain him indefinitely in military custody.

Within three months of the decision in Padilla III, the Government, clearly fearful of an appeal to the Supreme Court, suddenly announced that it was no longer necessary that Padilla be held in a military prison because he had been indicted on new terrorism charges in Florida. Significantly, the new Florida indictment mentioned none of the acts that formed the basis for the Government's original assertion of authority to detain Padilla in a military jail; and Attorney General Gonzales even stated that those prior charges were no longer “legally relevant.” (See P&J, 11/07/05).

After the Government switched positions and changed the legal theory of its case against Padilla, it went back to the Fourth Circuit and asked the Court to withdraw its opinion in Padilla III, in order to block any appeal of that ruling to the Supreme Court. However, the Fourth Circuit rejected that request; and, in so doing, it left no doubt that it was dismayed by the Government’s tactics. In Padilla v. Hanft, 432 F.3d 582 (4th Cir. Dec. 21, 2005) (Padilla IV), the Fourth Circuit ruefully stated:

“Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion.”

On this second trip to the Supreme Court, Padilla was again denied a hearing on the merits of his claims. Over the dissent of Justices Ginsburg, Souter and Breyer, the Court voted not to grant Padilla’s writ of certiorari in Padilla III. Justice Kennedy wrote a short opinion explaining his vote to deny the petition; and he was joined by Justice Stevens and Chief Justice Roberts. The gist of Kennedy’s opinion was that Padilla’s indictment in the Florida case made it difficult for the Court to address the merits of his claims. He wrote:

“Even if the Court were to rule in Padilla's favor, his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.”

The Court’s refusal to hear the case essentially leaves intact the Fourth Circuit’s sweeping and controversial ruling in Padilla III that the President can detain American citizens indefinitely simply by designating them as “enemy combatants.” The Court’s ruling also raised a number of questions. Why, for example, did Justice Stevens vote not to address the merits of the case, especially since, in Padilla I, he sharply criticized the majority for failing to address the same issue, which he said “raises questions of profound importance to the nation”?

U.S. v. Saenz, No. CR 03-4089-MWB (N.D.Iowa Mar. 23, 2006) (Judge Bennett)

Kim Saenz was one of four defendants arrested and charged with the distribution of marijuana. She immediately pled guilty and, on the day of her arrest, she began cooperating with the Government in its case against the other defendants, including her ex-husband. Kim’s recommended sentencing range under the Guidelines was 63-to-78 months; but the Government recommended a 30 percent downward departure (to 44 months in prison) to reflect Kim’s substantial assistance.

At Kim’s initial sentencing, Judge Bennett rejected the Government’s recommended departure as "arbitrary and capricious and without any basis because [the government] fail[s] to disclose how [it] arrive[s] at [its] decisions." Instead, Judge Bennett reduced Kim’s sentence by some 68 percent and imposed a sentence of 20 months.

The Government appealed; and, in U.S. v. Saenz, 428 F.3d 1159 (8th Cir. Nov. 17, 2005), the Eighth Circuit vacated the 20-month sentence, after concluding that the "extent of reduction granted" as a result of the defendant's substantial assistance "was unreasonably large." It explained:

“The appropriate degree of sentencing reduction cannot be calculated with mathematical precision, and there is a range of reasonableness available to the district court in any given case. On this record, however, we conclude that the district court’s analysis was flawed by its conclusion that timely and truthful cooperation always warrants a reduction of more than 50 percent, and that the degree of reduction was excessive and unreasonable under the circumstances of this case. Accordingly, the judgment of the district court is vacated, and the case is remanded for resentencing consistent with this opinion.”

On remand, Judge Bennett stuck to his guns and reimposed the same 20 month sentence. In this outspoken and noteworthy decision that is certain to agitate the Eighth Circuit, Judge Bennett rejected as incorrect the Eighth Circuit’s legal analysis. Setting both the tone and the theme for his lengthy decision, he started by taking issue with the Circuit Court’s “notion” that a 50 percent sentence reduction for extraordinary cooperation is “exceptional,” stating:

“There is, in my view, no basis for such a benchmark in federal statutory law, federal common law, the United States Sentencing Guidelines themselves, the realities of federal sentencing, or basic concepts of fairness, mercy, and justice. Indeed, recent data compiled by the United States Sentencing Commission demonstrate that labeling a 50 percent reduction for substantial assistance "extraordinary" is at odds with the facts and so deeply troubling that the Circuit Court should reevaluate its position. I will return to this point, in detail, below. However, I must first address some critical issues of context for sentencing generally and substantial assistance downward departures in particular.”

Among the factors that Judge Bennett noted for the Eighth Circuit’s edification were the following:

• “[M]ost of the individuals I sentence in drug cases are drug addicts”;

• “[W]hile we say the district judge sentences the offender, in fact, the prosecutor, as I have shown in a number of opinions, often has more input into the sentence to be imposed than does the district judge”; and

• “I am puzzled by a sentencing scheme that appears to give far more deference to the exercise of discretion by prosecutors than to the exercise of discretion by experienced federal district court judges, where the latter are more likely than the former to have developed a sense of what is fair and reasonable in sentencing through their experience with hundreds of cases and their knowledge of nationwide practices.”

Although Judge Bennett did add some new factual findings to support his position that a 20-month sentence was the appropriate sentence in this case, his outspoken and public criticism of the Eighth Circuit’s ruling and his refusal to accept quietly a longer sentence are bound to offend the Eighth Circuit judges; and we predict another appeal and a quick remand to another judge. Nevertheless, for anyone facing a sentencing based on substantial assistance, Judge Bennett’s compendium is filled with useful and helpful insights and facts.

U.S. v. Milam, No. 05-6259 (4th Cir. Apr. 6, 2006) (Judge Niemeyer)

The Fourth Circuit addressed an important sentencing issue in these two consolidated cases - namely whether a defendant’s failure to raise any objections to facts stated in his presentence reports constitutes an admission of those facts for purposes of U.S. v. Booker, 543 U.S. 220 (2005) - and its ruling on that issue is both significant and creates a split with the Sixth and Eighth Circuits.

The defendants Jason and Lee Milam, who are brothers, were arrested after selling cocaine powder and “Ecstasy” pills to undercover agents. The brothers pled guilty to a charge of abetting each other in distributing an unspecified quantity of Ecstasy, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. During the plea colloquy, both brothers admitted to participating in a sale of 51 pills of Ecstasy for $ 20 each.

In calculating the appropriate Guideline Offense Level, the Probation Office attributed to each defendant, as relevant conduct, additional quantities of drugs beyond the 51 pills of Ecstacy to which they allocuted when they pled guilty; and, based on its calculations, it recommended a Base Offense Level of 24 for Lee and 26 for Jason.

Apparently, neither brother filed any objections to the facts or the drug quantity calculations contained in the presentence report prior to sentencing. However, at Lee’s sentencing, he did object to the quantity of drugs attributed to him, contending that he should be sentenced only on the basis of 51 pills of Ecstasy, the quantity to which he admitted in pleading guilty. The district court rejected that objection and sentenced Lee to 51 months in prison.

At his separate sentencing, Jason objected to the Probation Office’s recommendation that he be given a two level enhancement for possession of a firearm in connection with his drug crime, but he did not raise any objection to the quantities of drugs attributed to him. The district court rejected Jason’s objection to the firearm enhancement and sentenced him to 87 months in prison.

On appeal, the Government conceded that Lee’s sentence violated his Sixth Amendment rights under Booker, which led the Court to conclude:

“The 51 pills to which Lee admitted in his guilty plea would lead to an offense level of 12 and a sentencing range of 12 to 18 months. Instead, the district court found, over Lee's objection, that he should be accountable for a greater quantity of drugs, which resulted in an offense level of 24 and a sentencing range of 51 to 63 months. In these circumstances, we take note of plain error and vacate Lee's sentence, remanding for resentencing.”

Jason made a similar argument, but the Government contended that his circumstances were different because Jason, unlike Lee, did not object to the proposed findings of drug quantity contained in the presentence report, and his failure to object constituted an admission of those facts for sentencing purposes.

In support of its argument, the Government cited Fed.R.Crim.P. 32(i)(3)(A) (which authorizes the district court to "accept any undisputed portion of the presentence report as a finding of fact"), and U.S.S.G. § 6A1.2(b) (which provides that "parties must state in writing any objections, including objections to material information . . . contained in or omitted from" the presentence report).

In rejecting the Government’s argument, the Court stated:

“The problem with the government's argument is its failure to recognize a distinction between those factual issues committed by Rule 32(i)(3) to the court for resolution and those factual issues committed by Booker to a jury. Booker makes certain facts resolvable only by a jury unless the defendant admits the facts so as to render irrelevant the Sixth Amendment protections that attach to finding them. . . .

“Thus, any fact that increases the maximum penalty for a crime, even though previously treated as part of the sentencing process, must now be treated as an element of the offense, and as to that element, a defendant enjoys the protections of the Sixth Amendment.

“The law is well established on how these Sixth Amendment protections can be bypassed. If the defendant expressly waives his Sixth Amendment rights, consents to factfinding by the court, or admits the fact otherwise committed to the jury, the Sixth Amendment protections are avoided.

“Any admission of fact must, of course, be of sufficient clarity and kind to justify taking the fact from the jury. To presume, infer, or deem a fact admitted because the defendant has remained silent, however, is contrary to the Sixth Amendment.” (Internal citations omitted).

Based on that analysis, the Court concluded:

“In these cases, we hold that facts stated in a presentence report may not, at sentencing, be deemed to be admissions by the defendant sufficient to bypass the Sixth Amendment right to a jury trial as articulated in U.S. v. Booker, 543 U.S. 220 (2005), even though the defendant, who had been given the presentence report before sentencing, did not object to the facts. We therefore conclude that the district court violated the defendant's Sixth Amendment rights in each case when it relied on facts stated in the presentence report to enhance the defendant's sentence beyond the statutory minimum. We vacate the sentences in these two appeals and remand for resentencing.”

As a matter of interest, the panel acknowledged that its ruling conflicted with rulings from the Sixth and Eighth Circuits. It cited U.S. v. DeCarlo, 434 F.3d 447 (6th Cir. 2006) and U.S. v. Cullen, 432 F.3d 903 (8th Cir. 2006) for the proposition that if the defendant fails to object to facts in the presentencing report, then the defendant has admitted that fact and a jury trial is not necessary. However, it concluded that, while the Sixth and Eighth Circuits applied Rule 32, as the Government had urged in the instant case, both courts “failed to make the distinction between factual issues committed to the court for resolution and factual issues committed by Booker to the jury with Sixth Amendment protections.” Thus, it concluded:

“Because the cases from these two circuits neither recognize the Sixth Amendment protections for facts that constitute an element of the offense under the Apprendi line of cases nor address the effect of Booker on factfinding during sentencing, we do not find them persuasive authority for disposition of the case before us, which concededly involved facts that supported a sentence ‘exceeding the maximums authorized by the facts established by a plea of guilty or a jury verdict’." Booker, 125 S. Ct. at 756.”

While Judge Shedd dissented from the majority’s decision to vacate Jason’s sentence, he did so only on the limited factual grounds that Jason’s presentence report “expressly noted that Jason ‘admitted’ to purchasing the relevant quantity of drugs for which he was sentenced. Thus, in Judge Shedd’s view, Jason’s failure to object to that claimed admission constituted a clear admission of the drug amount for Booker purposes.

In Brief
[partial listing of cases]

BOP’s Rule Limiting Halfway House Utilization Vacated (Again): Fults v. Sanders, No. 05-3490 (8th Cir. Apr. 6, 2006) - Joining with the Third Circuit’s decision in Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3rd Cir. 2005), the Eighth Circuit struck down the BOP’s latest variation of its Rule, contained in 28 C.F.R. § 570.20, that limits a prisoner’s use of halfway house (Community Confinement Centers or CCCs) to the last 10% of the prisoner’s sentence. As a number of courts did with prior variations of this Rule, the divided panel held that, despite calling the amended Rule a “categorical exercise of discretion,” the Rule still violates the provisions of 18 U.S.C. § 3621(b) and is contrary to Congressional policy. Once again, the Court stressed that, under § 3621(b), the BOP has the discretion to transfer an inmate to a CCC at any time, but only the duty to consider a transfer to a CCC in the last six months of a sentence.

Guidelines - Terrorism Enhancement: U.S. v. DeAmaris, 406 F.Supp.2d 748 (S.D.Tex. Dec. 1, 2005) - Here the Court held that the terrorism sentencing enhancement contained in U.S.S.G. § 3A1.4(a), which applies if the crime of conviction "involved, or was intended to promote, a federal crime of terrorism," is not limited to cases involving the United States "government." The commentary to that Guideline states that the term "federal crime of terrorism" has the meaning contained in 18 U.S.C. § 2332b(g)(5). The defendants argued that the enhancement did not apply because the word "government" as defined in 18 U.S.C. § 2332b(g)(5)(A) is limited to the United States Government. Judge Simeon Lake rejected that interpretation, stating that "the most reasoned approach" was to define "government" as including any government, foreign or domestic. Thus, he agreed with the Government that the terrorism enhancement applied in the instant case where the defendants were convicted of providing material support to a terrorist organization located and operating in Columbia.

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