Chief Judge José A. Fusté, District of Puerto Rico, has entered an Administrative Order dealing with the implementation of the Crack Retroactivity Guideline in the District of Puerto Rico. See Misc. No. 08-31 (JAF) (Dkt. 1).
We had previously discussed in this post the First Circuit's opinion in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) which appeared to endorse the idea that a district court may take into account the
disparity between federal and state sentences for the same conduct in
arriving at a correct sentence in the post-Booker world.
Furthermore, we discussed whether DOJ would request rehearing (as suggested by Professor Berman at Sentencing Law and Policy in this post), or await to see what the district court did on remand (as suggested by us). Professor Berman was right on this one in that DOJ has sought panel rehearing on the issue of whether the district court can consider disparities between federal and state sentences in the post-Booker world.
The Federal Public Defender's Office in D.Mass., who represent appellant Wilkerson, has submitted a response to this petition, but we have been unable to obtain the same, and will post it upon receipt.
My impression: the First Circuit will not grant rehearing on this issue.
Update: Sentencing Law and Policy covers this here, and Appellate Law & Practice here. S.Cotus at Appellate Law & Policy gets a kick out of DOJ referring to people who write under various monikers, “S.Cotus,”
“lazerwolf ,” or “Happy Fun Lawyer,” or “Reversible Error” as commentators.
The reason why I think the First Circuit will not grant rehearing is that the Government's petition argues that "federal-state sentencing disparity is never an appropriate consideration in federal sentencing, even in a post-Booker setting" (emphasis in original). The First Circuit, one would think, will consider this assertion a bit of a stretch, and will probably prefer some context in which to decide such an issue, such as awaiting to see what the District Court actually does and how it explains it.
On Monday the Supreme Court decided Dodd v. United States, No. 04-5286 (June 20, 2005) holding that the 1 year
limitations period under 2255(3) "begins to run on the date on which
this Court 'initially recognized' the right asserted in an applicant's
motion, not the date on which that right was made retroactive"
Peter Godlberger, through a post at BOPWatch as well as his comment at Sentencing Law and Policyhere, has alerted to the importance of Dodd to persons whose sentences became final before Blakely v. Washington was decided on June 24, 2004. I'm reproducing here Peter's comments at Sentencing Law and Policy:
Dodd has major and immediate implications for the AEDPA statute of
limitations on Blakely/Booker claims. I would emphasize that the "newly
recognized right" in question was more likely announced in Blakely than
in Booker, so the year is more likely (under Dodd) to run from the date
of Blakely than from the date of Booker next January. Honestly, it's
hard to see how Booker announced any "new right" at all (although many
circuits have more or less said it did, for purposes of analyzing retroactivity under Teague v Lane, a related but not necessarily
identical question, even in the cockamamie sense that the expression
"new rule" is used for Teague v Lane purposes); what was *new* in
Booker was the *remedy* not the "right" or the "rule," IMHO. Be that as
it may, the only sensible advice at this point, it seems to me, for any
federal prisoner whose conviction became final more than a year ago and whose sentence might be mitigated if Booker were applied to him/her,
and who has not previously filed a 2255 motion, is to file a 2255 on or
before 6/24/05 - [three] days from now! The motion doesn't have to be in
polished form, just to get something in. For a pro se prisoner,
depositing it in the prison legal mailbox counts as filing, if the motion says that's what the prisoner is going to do. It can be amended
to comply with formal requirements, at least (I'm leaving wiggle room
here for how Mayle may come out). In all likelihood, the courts aren't
going to hold the Apprendi/Ring/Blakely/Booker "rule" retroactive no
matter when you file, but just in case there's no reason to blow the
statute of limitations unnecessarily, too. -- Peter Goldberger, Ardmore, PA
In another of her impressive opinions on sentencing issues, Judge Gertner has issued a Sentencing Memorandum in United States v. Malouf, No. 03-cr-10298-NG (D.Mass. June 14, 2005). The first few paragraphs read as follows:
This case is about the interpretation of an important federal drug distribution statute, 21 U.S.C. § 841, under which the defendant Michael Malouf (“Malouf”) was indicted. Section 841 creates a staircase of sentences, with steep increases at each step – statutory maximums up to life imprisonment and mandatory minimums that increase from five, to ten, and to twenty years. Where the defendant is situated on this sentencing staircase depends upon the type and quantity of drugs involved, whether the defendant has a prior felony drug conviction, and whether death or bodily injury resulted from the offense.
The interpretation of the statute is complicated by recent changes in Supreme Court sentencing law, embodied by Blakely v. Washington, 124 S. Ct. 2531 (2004), United States v. Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125 S. Ct. 1254 (2005). This law substantially impacts the application of each factor in the statute - in particular, prior convictions (implicating Almendarez-Torres v. United States, 523 U.S. 224 (1998)), bodily injury (implicating Jones v. United States, 526 U.S. 227 (1999), and drug quantity - that increases the statutory maximum penalty (implicating Apprendi v. New Jersey, 530 U.S. 466 (2000)), and/or the mandatory minimums (implicating Harris v. United States, 536 U.S. 545 (2002)). The question is whether, as the Supreme Court’s decisional law has changed, the interpretation of 21 U.S.C. § 841 should likewise change.
Specifically, the sentencing of Michael Malouf raises the following questions: (1) Do the drug quantities outlined in 21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is required and the standard of proof is beyond a reasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court’s rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit’s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?
As you can tell, the Malouf Sentencing Memorandum covers a lot of ground, and I strongly recommend you read it all.
In a Booker remand in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) the panel seems to be endorsing the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world. The passage comes towards the end of the opinion, and states:
The district judge sentenced Wilkerson to the lowest available sentence under the Guidelines. He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases, but stated that the Guidelines did not permit him to take that disparity into account. The district judge also observed that Wilkerson had the most horrible young life he had seen in 17 years on the bench. Both the need to avoid unwarranted sentencing disparities and the history and characteristics of the defendant are among the factors to be considered by the now advisory Guidelines. 18 U.S.C. § 3553(a). As this court recognized in Heldeman, where there is a reasonable indication that the district judge might well have given a different sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, we are persuaded that remand is required. 402 F.3d at 224. We express no view on whether defendant should be resentenced or on any possible resentence.
Professor Berman in this post at Sentencing Law and Policy states that prosecutors "will seek re-hearing on this point since, as noted in
this post, DOJ has been saying it will appeal any district court sentence
with a variance based on comparisons to state sentencing laws.
Wilkerson as it stands seems to approve such comparisons."
According to this last linked to post at SL&P, DOJ personnel have stated that there are "five types of sentencing decisions that would be appealed in every
instance: (1) any sentence with a variance of straight probation; (2)
any sentence with a variance based on crack/powder cocaine disparity;
(3) any sentence with a variance based on fast-track disparity; (4) any
sentence with a variance based on comparison to state sentencing laws;
and (5) any sentence with a variance based on substantial assistance in
the absence of a 5K letter. This appellate approach should produce
some interesting (and, I would anticipate, somewhat disparate) circuit
court rulings about the meaning of reasonableness."
I have a different take on this than Professor Berman. In my view, rather than seeking rehearing before the Court at this stage, DOJ will likely wait to see what the District Court does on remand and then appeal the matter if the District Court actually considers the disparity between state and federal sentences.
See also this post at Appellate Law & Practice which covers not only the Booker aspects, but also other issues decided in the Wilkerson opinion such as the use of prior consistent statements to rehabilitate a witness as well as prosecutorial vouching.
In United States v. Work, No. 04-2172 (1st Cir. June 3, 2005) defendant-appellant argued "that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time." More to the point, he argued that "when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt."
The First Circuit rejected this argument, concluding that "appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong."
The difficulty with the appellant's argument is that this type of judicial factfinding does not pose a Sixth Amendment problem. The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (holding that the "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply"); see also Johnson v. United States, 529 U.S. 694, 700 (2000) (dealing with revocation of supervised release); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (dealing with revocation of probation). To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty). As such, the accused must be accorded a suitable panoply of due process protections. See United States v. Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003); United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). See Morrissey, 408 U.S. at 489; United States v. Czajak, 909 F.2d 20, 24 (1st Cir. 1990). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding. See DeWitt v. Ventetoulo, 6 F.3d 32, 37 (1st Cir. 1993). The appellant's argument that he was constitutionally entitled to such protections collapses under the weight of these authorities.
By like token, the district court did not commit Booker error in imposing the incremental prison term. While the Sixth Amendment does not apply in revocation hearings, a Booker error can occur even absent a Sixth Amendment violation if the sentencing court treats the federal sentencing guidelines as mandatory. See Antonakopoulos, 399 F.3d at 75. That being said, the portions of the sentencing guidelines dealing with revocation of supervised release are merely policy statements. See USSG §§7B1.1-7B1.5. Even before Booker, those guidelines were deemed advisory rather than mandatory. See United States v. O'Neil, 11 F.3d 292, 301 n.11 (1st Cir. 1993). They remain advisory to this date. Consequently, resort to them cannot constitute Booker error.See United States v. González-Mercardo, 402 F.3d 294, 303 (1st Cir. 2005) (describing nature of Booker error); Antonakopoulos, 399 F.3d at 75 (same).
While the Court had earlier in the opinion remarked that appellant's insistence in not attacking the fact that his sentence on supervised release revocation was rendered under a mandatory guidelines system may have fatally flawed his appeal, it is clear that the appeal was doomed anyway, given the holding that the guidelines dealing with revocation of supervised release are policy statements that were always deemed advisory, even before Booker.
Fellow PRACDL member Linda Backiel just won a new trial for her client in US v. Vega Molina, No. 03-1625 (1st Cir. May 19, 2005). We'll develop this a bit more later, but just wanted you all to have a bite at it first. I recall the trial of that case before Judge Domínguez, which was widely covered in the press and was hotly fought.
Update (May 20, 2005):Appellate Law and Practice has coverage of the opinion here and elaborates some more here. They point out that the new trial granted in this case (as to one of the appellants only) "may be some indication that the First is paying some attention to professional responsibility issues" with the link leading to an earlier post of ours in which we had commented on a Ninth Circuit case and added:
To the criminal defense bar practicing in the district of Puerto Rico an opinion such as Weatherspoon
offers little solace. After all, we practice in a district where the
U.S. Attorney's Office has been repeatedly warned and slapped on the
hand by the First Circuit Court of Appeals for improper comments and
misconduct, only to be warned and slapped on the hand again, with no
reversals. If any Judges from the First Circuit read this blog, let me
state loud and clear that your method of dealing with this has not been
helpful at all. Make them really pay a price, such as a few convictions
being reversed, and then --and only then-- will the prosecutors who are prone to misconduct start to get their act together.
I hope that the fellows at Appellate Law and Practice are right in their observation as to shifting sands at the First Circuit, but still insist that there have to be a few more reversals on such grounds before prosecutorial attitudes are changed, rather than rationalized. This was no small case for the government, and it is good that it happened in just such a case, since it will have a greater positive effect. And once the First Circuit starts to send out hard messages such as this one, rather than soft ones as in so many prior opinions in cases from this District, then the logical thing is that District Judges will also be less tolerant of prosecutorial excesses. My hat off to the Judges on the First, even if Judge Selya made me reach for the dictionary again.
In what has to be one of the more interesting post-Booker opinions, Chief Judge Holmes of the Northern District of Oklahoma who, post-Blakely, gave us US v. O’Daniel, 328 F. Supp. 2d 1168 (N.D. Okla. 2004) (see this post), and US v. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004) (see this post), has now entered an Order in US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005) in which it would appear he is flaunting the Booker remedial majority's solution of advisory guidelines by going for a system in which the guidelines will be mandatory but one in which the Sixth Amendment rights will be respected. It is interesting reading.
I strongly suggest reading Judge Pérez-Giménez's Opinion and Order in U.S. v. Angel González-Méndez, 352 F.Supp.2d 173, 66 Fed. R. Evid. Serv. 301 (D.Puerto Rico January 14, 2005) concerning the Government's interest in inquiring as to the source of attorneys fees --pretrial-- in a case involving the robbery of a financial institution and in which none of the stolen funds have been recovered. Defendants apparently have no legitimate income either. Judge Pérez-Giménez tells the Government that they cannot use the procedure set forth for so-called "Nebbia hearings" (after US v. Nebbia, 357 F.2d 303 (2d Cir. 1966)) for this sort of pretrial investigation. However, and this is important, take a careful look at n. 3 of the opinion.