Puerto Rico Association of Criminal Defense Lawyers

USSC: "Report on the Impact of United States v. Booker on Federal Sentencing"

The United States Sentencing Commission has released a Report on the Impact of United States v. Booker on Federal Sentencing (caveat, the PDF is 277 pages). Professor Berman at Sentencing Law and Policy has an initial post on this here in which he states:

Also based on a quick scan, here is a notable sound-bite: "The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased."  USSC Report at p. vii.

I have not had a chance to read this report, as I'm preparing for a trial, but took a short break from work.

Update:  Read Sensenbrenner Expresses Concern Over Federal Sentencing Practices Detailed in New Report.

Peter Goldberger on Dodd and Filing 2255 with Blakely/Booker Claims

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 Policy here, 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

So you have been warned now.

The 100 to 1 Powder Cocaine to Crack Disparity Post-Booker

In dealing with the powder cocaine to crack 100-1 disparity post-Booker, U.S. District Judge Ronnie Greer gives us a nicely crafted Memorandum Opinion and Order regarding sentencing in United States v. Clay, Cr. No. 03-73 (E.D.Tenn. May 6, 2005). Our thanks to Carmen Hernandez for posting it on the BOPWatch group. As Carmen informs:

The opinion analyzes the problems with the crack/powder ratio.  It also cites to other similar cases:  United States v. Smith, 359 F.Supp.2d 771 (E.D.Wis.2005) (granting below Guidelines sentence to defendant convicted of crack offense); Simon v. United States, 2005 WL 711916 (E.D.N.Y.); United States v. Carvajal, 2005 WL 476125 (S.D.N.Y. ); United States v. Nellum, 2005 WL 300073, at *3 (N.D.In.).

I also know that some judges in DC have imposed sentences below the guideline range in crack cases but don't have those cites.

And Amy Baron-Evans, Nat'l Sentencing Resource Counsel, Federal Defender Office in Boston, adds a few more cases to the list:

Here are a couple of more cases, United States v. Thomas, 2005 U.S. Dist. LEXIS 3972 (D. Mass. Mar. 14, 2005); United States  v. Harris, 2005 U.S. Dist. LEXIS 3958 (D.D.C. Mar. 7, 2005), and you can also say that the Sentencing Commission, in its recently published Fifteen Year Study, found that the 100 to 1 crack/powder quantity ratio creates racial disparity. See United States Sentencing Commission, Fifteen Years of Guidelines Sentencing:  An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004), available at www.ussc.gov.

So there is a good deal of help for your next sentencing hearing involving crack cocaine. Again, our thanks to Carmen Hernandez and to Amy Baron-Evans.

The 7th Addresses Pros and Cons of Full v. Limited Post-Booker Remands (Sort of)

From the 7th Circuit we get United States v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) in which defendant had been sentenced pre-Booker and was arguing on appeal a misapplication of the sentencing guidelines by the district court in imposing a vulnerable victim enhancement. If the defendant was right, and the Court remanded on that ground, he would have to be resentenced, in which case --according to Judge Posner-- the district court could impose a higher, lower, or the same sentence under the new advisory guidelines. The 7th Circuit did not buy the misapplication of the guidelines argument, and held that defendant was entitled to a limited remand under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). But to questions from the bench at oral argument, defense counsel had argued that the district court could not impose a higher sentence on resentencing because it would raise a presumption of vindictiveness. At oral argument the Court chastised counsel for his argument and thought that they were failing to consider the fact that the vindictiveness would only be presumed if they were still in the pre-Booker mandatory guidelines scheme, but not when the rules of the game had changed. Judge Posner explains in his opinion how the more limited Paladino remand may be better for defendant than what he was actually requesting, because it would make it more likely that he would not receive an increased sentence on remand.

At Sentencing Law and Policy Professor Berman has discussed the case in this post (Can a post-Booker resentencing lead to a sentence increase?) and wondered how Judge Posner had failed to "discuss or even seem to consider that due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct."[*] Professor Berman's post also links to previous posts at SL&P in which he discussed the due process / ex post facto issue and should be read by all.

[*] I went to the Seventh Circuit website and looked for the Goldberg opinion and found that they also had a link to the oral argument which (of course) I listened to. Appellant's counsel never spoke of the ex post facto issue when explaining to the Court why he understood the district court would not be able to impose a higher sentence if the case was remanded for a full resentencing rather than for a limited Paladino remand. Does this explain why Judge Posner didn't address it in his opinion for the panel in Goldberg? Does it excuse it?

The ABA on H.R. 1528

Here is the Position Paper of the American Bar Association Regarding Section 12 of HR 1528, which minces no words in tearing down the misleading statements put out by Representative Sensenbrenner's office.  Not only does it challenge the misleading nature of the statements, but it also points out that the result will be much litigation, and a likely finding down the road that this Booker-fix violates Booker. Hat tip to Sentencing Law and Policy in this post which also contains more links to additional voices rising in opposition to this unwarranted and ill-conceived quick-fix.

Links to H.R. 1528 (the Booker-Fix) Materials

H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" whose Section 12 has been called a Booker-fix, was considered in the House Judiciary Committee without anyone being called to testify as to the same. You can read more about H.R. 1528 at Sentencing Law and Policy's excellent coverage and commentary, at the following posts:

• Details concerning the brewing Booker fix
• Questions about the brewing Booker fix
• A day for sentencing hearings
• Bowman on the proposed Booker fix
• More opposition to quick Booker fix
• DOJ advocacy for mandatory minimum sentencing
• The rhetoric and reality surrounding the brewing Booker fix
• More potent criticisms of H.R. 1528
• Academic input on a not-so-academic Booker fix proposal
• Update on academic letter concerning H.R. 1528
• Final version of academic letter assailing brewing Booker fix
• When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?
• What's going on at DOJ?
• USSC speaks out against H.R. 1528

The USSC letter on H.R. 1528 is a must read, and one can only applaud the USSC for speaking out clearly about this crazy piece of legislation.  I have no idea how far this bill will go, but NACDL, FAMM, and just about everyone with any interest in federal sentencing is keeping a close watch on it.

First Circuit's First Booker Shots

I had not posted earlier on the First Circuit's first responses to Booker, see US v. Antonakopoulos, No. 03-1384 (1st Cir. Feb. 22, 2005) and US v. Sahlin, No. 04-1324 (1st Cir. Feb. 22, 2005), and much of it had to do with the fact that neither case is good news for defendants.  Sahlin perhaps makes the most sense, as it involves a defendant wanting to withdraw his plea based on Booker, alleging his plea could not have been voluntary, which the Court of Appeals rejected.  In Antonakopoulos the Court really sends its first strong signal on how it will deal with unpreserved Booker claims, and it is bad news. Defendants will not get a remand for resentencing except in extremely rare occasions when, for example, the District Judge expressed at the time of sentencing that he would have imposed a lesser sentence if it were not for the mandatory nature of the guidelines.

My view is that the direction in which the First is heading will probably mean that most post-Booker sentencing battles will be won or lost at the district court level, but we really do not know how the appellate court will handle the "reasonableness" of any particular sentence.

Additions to PRACDL Blog

We have added two new lists to the right sidebar of the blog - Booker in the First Circuit (includes District and appellate cases) and Booker Elsewhere. As the number of cases are likely to grow exponentially, we will in time start trimming these  lists to the most important cases.

Other addition (see left sidebar under heading For the Jury) are the Pattern Criminal Jury Instructions for the District Courts of the First Circuit, Judge D. Brock Hornby's 2005 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit (updated 2/17/05), and the Fifth Circuit District Judges Association Pattern Jury Instructions (Criminal Cases) (2001). We will be adding more shortly.

Also, we remind those of you not familiar with the blog that you can search for information contained in previous posts by using the items listed under Categories heading in the left sidebar. That will take you back to any posts under any particular category from the time we started the blog in July 2004. Posts are often listed under more than one category.

PRACDL Seminar on Booker & Crawford

PRACDL will be holding a one-day seminar on the application of Booker and Crawford on February 24, 2005 from 8:30 a.m. to 5:00 p.m. at the amphitheater of Inter-American University School of Law.

The guest speakers for the seminar are nationally renowned judge and attorneys:

• The Honorable Nancy Gertner, U.S. District Judge, District of Massachusetts - a member of Sentencing Law and Policy's Sentencing Judges Hall of Fame; see also PRACDL's posts on her opinion in U.S. v. Mueffleman, et al. (D.Mass., July 26, 2004): Guidelines Unconstitutional  and Not Severable - Judge Nancy Gertner and on her Order for Empanelment of 2 Juries for Capital Case: One non-Death-Qualified for Guilt Phase, the Other Death-Qualified for Penalty Phase in United States v. Darryl Green, et al.,Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004), with a further post on her Additional Findings to Justify 2 Juries for Capital Case.

• Peter Goldberger, of Ardmore, Pennsylvania - Just to mention a few of the good things about Peter, he was one of the players in NACDL's amicus brief in Booker and Fanfan.

• Richard Strafer, Miami, Florida - Many will know of him from having  played a leading role in NACDL's amicus brief in US v. Fermin Hilario, No. 00-1406 (1st Cir. July 17 2000), but his claim to recognition reaches far beyond that.

These are three speakers who should provide some very interesting insight in subject areas that are of great importance to all criminal defense lawyers.

This seminar is being co-sponsored by the U.S. District Court for the District of Puerto Rico, and all CJA Panel members who attend will receive CLE accreditation.

Here is the PRACDL Booker / Crawford Seminar flyer. You should confirm attendance either by e-mail or by telephone (both e-mail and telephone listed in flyer).

It is very likely that most Judges will not schedule any criminal matters for this day, so as to allow as many in the defense bar to attend the seminar.

US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005)

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.