Before you start making your arguments on the need for a particular sentence for your client so as to avoid unwarranted sentencing disparity, you should read United States v. Saez, No. 05-2001 (1st Cir. April 6, 2006).
See more on Saez at Appellate Law & Practice here.
I'm back from a hiatus (only to be interrupted again by an upcoming trial). The First Circuit issued the much awaited en banc opinion(s) in US v. Jiménez-Beltre, No. 05-1268 (1st Cir. March 9, 2006) to decide the following issues:
whether there is, post-Booker, appellate jurisdiction to review a within guideline sentence, with the Government arguing that there was no jurisdiction;
whether a within guideline sentence is presumptively reasonable; and
whether the within guideline sentence in the instant case was reasonable.
The en banc Court's opinion is written by Chief Judge Boudin, with a concurrence from Judge Torruella, a concurrence in part and concurrence in the Judgment by Judge Howard, and a very thoughtful dissent by Judge Lipez.
On the claim of lack of appellate jurisdiction to review a within guideline sentence, the Government loses just as it has in every other Circuit to have decided the issue. Judge Howard understands otherwise.
While the en banc opinion states that a within guideline sentence is not presumptively reasonable, thus appearing to side with defendants in general, this is just a mirage. In imposing sentence, the District Court had stated:
I'm certainly treating the Guidelines as advisory, not mandatory, but I feel I need to start someplace, and that's where I'm going to start. I do intend to give them substantial weight, but they don't have controlling weight; and if there are clearly identified and persuasive reasons why I should not impose a Guidelines sentence, I will consider those and impose a sentence accordingly.
On appeal, Chief Judge Boudin writing for the en banc court appears to adopt this same approach as can be seen from the following:
Central to the merits of this appeal is the question of what role the advisory guidelines should play in a post-Booker sentence. To begin with the conclusion, the guidelines continue in our view to be an important consideration in sentencing, both in the district court and on appeal, which should be addressed in the first instance by the sentencing judge. We do not find it helpful to talk about the guidelines as "presumptively" controlling or a guidelines sentence as "per se reasonable," and believe that the district judge's adroit one-paragraph summary (quoted above) is a more useful compass.
Our conclusion is rooted in both parts of the Booker decision. In holding the mandatory regime unconstitutional, the flaw discerned by the five-Justice majority was that mandatory guidelines created mini-crimes requiring jury findings. Booker, 125 S. Ct. at 750-52. Although making the guidelines "presumptive" or "per se reasonable" does not make them mandatory, it tends in that direction; and anyway terms like "presumptive" and "per se" are more ambiguous labels than they at first appear.
At the same time, the guidelines cannot be called just "another factor" in the statutory list, 18 U.S.C. § 3553(a) (2000), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges, Booker, 125 S. Ct. at 766-67; 28 U.S.C. § 994(o). The Sentencing Commission is also an expert agency charged by Congress with the task of promulgating guidelines and keeping them up to date. 28 U.S.C. § 994(c). In its remedial opinion, the Supreme Court has stressed the continuing role of the guidelines in promoting uniformity and fairness. Booker, 125 S. Ct. at 757-64.
Yet the guidelines are still generalizations that can point to outcomes that may appear unreasonable to sentencing judges in particular cases. Some of the guidelines in particular cases were not reflections of existing practice but were deliberate deviations or turned tendencies into absolutes. Others have been affected by directions from Congress. See, e.g., Pho, 433 F.3d at 61-63. Booker's remedial solution makes it possible for courts to impose non-guideline sentences that override the guidelines, subject only to the ultimate requirement of reasonableness. Accordingly, at sentencing, the district court must continue to "consider the Guidelines 'sentencing range.'" Booker, 125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)). In most cases, this will mean that the district court will have to calculate the applicable guidelines range including the resolution of any factual or legal disputes necessary to that calculation--unless they do not matter--before deciding whether to exercise its new-found discretion to impose a non-guidelines sentence. Robinson, 433 F.3d at 35.
In sum, we agree with the district court's general approach, quoted above, and we find very helpful the district court's sequential determination of the guideline range, including any proposed departures, followed by the further determination whether other factors identified by either side warrant an ultimate sentence above or below the guideline range. To construct a reasonable sentence starting from scratch in every case would defeat any chance at rough equality which remains a congressional objective.
In his concurrence, Judge Torruella writes that
Finally, I think it is of critical importance that the majority opinion be understood to reinforce our commitment to the statutory requirement that, in all cases, district courts must impose sentences that are "sufficient, but not greater than necessary" to effectuate the goals of criminal punishment, as articulated in 18 U.S.C. § 3553(a). In articulating its reasons for imposing any sentence, the district court must make clear reference to this central principle.
But it is Judge Lipez's dissent that hits the nail on the head and shows us exactly why the majority's opinion is a mirage. Judge Lipez states that he
[...] agree[s] with some of the majority's description of the role that the advisory guidelines should play in the determination of post-Booker sentences, and its rejection of the reasoning of Judge Howard's concurring opinion.
The guidelines remain an important consideration in sentencing. The guidelines should not be presumptively controlling, and a guidelines sentence should not be deemed per se reasonable. The guidelines are generalizations that can be unreasonable in particular cases.
But the district court's approach to the guidelines in this case was inconsistent with these principles. I do not say this to be critical of the district court. It was operating in an uncertain environment. Its discussion of the guidelines was careful and thoughtful. However, this statement of the district court, quoted by the majority, is the problem:
I am certainly treating the guidelines as advisory, not mandatory, but I feel I need to start someplace and that's where I am going to start. I do intend to give them substantial weight, but they don't have controlling weight; and if there are clearly identified and persuasive reasons why I should not impose a guidelines sentence, I will consider those and impose a sentence accordingly.
The majority characterizes this paragraph as "adroit" and a "useful compass." I disagree. There is a significant difference between treating the guidelines as important and giving them substantial weight. There is scant difference between treating a guidelines sentence as presumptively controlling and stating that the court will depart from that sentence only for "clearly identified and persuasive reasons." Here, the judge gave the guidelines a weight and a centrality that uncomfortably approximate the mandatory guidelines system that the Supreme Court found unconstitutional in Booker. To steer a sensible course between the Supreme Court's rejection on constitutional grounds of mandatory guidelines and Congress's continuing reliance on the guidelines to achieve uniformity in sentencing, I think that a different approach to sentencing post-Booker is required.
Judge Lipez compares the district court's and the en banc First Circuit's majority's view with that expressed by District Judge Paul G. Cassell in United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005), decided just one day after Booker. In Wilson the district court determined that "in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons."Id.
There is one final passage from Judge Lipez's dissent that merits inclusion in this post:
[...] The guidelines are no longer self-justifying. They are not the safe harbor they once were. However, if district courts assume that the guidelines sentence complies with the sentencing statute, and focus only on the compliance of the non-guidelines sentence urged by the defendant, the district courts will effectively give the guidelines a controlling weight and a presumptive validity that is difficult to defend under the constitutional ruling in Booker.
That is precisely what happened in this case.
While Jiménez-Beltre does leave some flexibility to the defense, it is far from what most defense counsel who have followed Booker developments would have desired. If you ask me whether it could have been worse, the answer is yes, of course.
It appears that the First Circuit is about to take a serious look at the meaning of "advisory" as applied to the sentencing guidelines post-Booker. This has arisen in the context of the appeals from the Rhode Island federal cases in which District Judge Ernest Torres rejected the 100:1 crack to powder cocaine disparity. Professor Berman at Sentencing Law and Policy has a link to the audio of the oral argument here.
The question involves what the person (whom I believe from the audio to be Judge Selya) tells defense counsel about the importance of deciding at what point are the guidelines advisory. Booker required courts to consult the guidelines. Does consult mean that I will look at the guidelines and if I don't like a particular guideline I will ignore it, or does consult mean that the Judge has to calculate the correct guideline and then, as government counsel stated, "... and then take that great discretionary leap" to sentence outside the guidelines. As Judge Selya pointed out, the answer to that question is not only important to the immediate cases, but to all criminal cases.
Moreover, the Court of Appeals suggests at one point to defense counsel 18 U.S.C. Sec. 3553(a) critical initial instruction to judges, what has been called the "parsimony provision," which states: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection."
The results of these appeals should be interesting, and I invite you all to listen to the audio of the oral argument.
In my previous post on United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) -- yes, the case where it appeared that the First Circuit might be endorsing a district court's consideration of disparities in sentences for the same conduct as between federal and state cases -- I mentioned that the docket revealed that the petition for panel rehearing filed by the government to have the Court express itself on this issue had been denied.
However, my look at the docket was on the cheap, only looking at the last entry so as to avoid paying for the full docket, and this caused me to overlook the errata entered by the Court, described in a previous docket entry. The key part of the errata was that the Court added a footnote that stated that "*We express no opinion at this time about whether federal state sentencing disparities may be considered under the post-Booker advisory guidelines." You can access the Wilkerson errata here.
This is pretty much in keeping with my initial view that the Court would find the Government's posture that such comparisons could never be considered post-Booker a bit of a stretch, and one the Court did not need to decide in a vacuum.
Upon checking the docket for United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) it appears that the First Circuit has denied the petitions for panel rehearing. As we indicated in our previous post here, Wilkerson "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."
We also gave our reason as to why the First Circuit would probably not grant rehearing. The docket does not reflect any reason why rehearing was denied, but only that it was.
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.
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.
Professor Berman had reported at Sentencing Law and Policy here on Judge Gertner's decision in US v. Pimental, No. 99-10310-NG (D. Mass. April 15, 2005). Judge Gertner has now issued an Amended Sentencing Memorandum in US v. Pimental, No. 99-10310-NG (D. Mass. April 21, 2005). This is a very interesting case in which Judge Gertner deals with acquitted conduct as well as the standard of proof post-Booker.
The conduct that the Government had urged the Court to consider at sentencing "is the very same conduct that the jury considered and of which they acquitted the defendant. At issue, then, is the continued vitality of the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997), which upheld an increased sentence for the defendant based on acquitted conduct, in light of its recent decision in Booker."
This case had already been on appeal once before, after the jury had acquitted one defendant on all counts and had convicted the other of all but two counts. Judge Gertner hjad then granted a post verdict motion for judgment of acquittal. The First Circuit reversed. See U.S. v. Pimental, 380 F.3d 575 (1st Cir. 2004). The case on appeal was decided on August 30, 2004, but there is no mention of Blakely or Booker. It merely reverses the post-verdict judgment of acquittal granted by Judge Gertner and remands for resentencing on the two Counts on which the jury convicted defendant. We have little doubt that there will be another First Circuit Pimental opinion down the line.
This is yet another thoughtful opinion from Judge Gertner, who seems to always be on the cutting edge of sentencing law.