Puerto Rico Association of Criminal Defense Lawyers

Appellant Stumbles at Step Three of the Plain Error Pavane

Everything was going so well as counsel was engaged in his plain error pavane. Then came that difficult third step and he stumbled. The Court decided there would be no Booker remand for resentencing, as the District Court (Cerezo, J.) had made it abundantly clear that her intent was to punish appellant harshly (the guidelines, without any downward departure, would have allowed Judge Cerezo to impose an aggregate sentence as low as 360 months for the grouped counts, and she chose to sentence appellant to nearly double that amount of prison time — a total of 600 months), even if she had operated under mandatory sentencing guidelines. See United States v. González-Mercado, No. 03-2173 (1st Cir. April 1, 2005).

The pavane, for the very few who do not know, is "a slow, stately court dance of the 16th and 17th centuries, usually in duple meter."  Now don't go looking for a dance studio to learn the pavane and then expect CLE credit for it. 

First Circuit Judges Lipez and Torruella Propose "Presumed Prejudice" Standard, which the Government can then Try to Rebut for Unpreserved Booker Claims

In United States v. Serrano-Beauvaix, No. 02-2286 (1st Cir. March 4, 2005) (a case involving an unpreserved Booker claim) the First Circuit holds that no remand for resentencing is necessary because "Serrano has failed to carry his burden that there is a 'reasonable probability' that he would be sentenced more leniently under an advisory Guidelines system. See United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005)." Judge Lynch writes:

We have recently set forth the applicable framework for review of unpreserved Booker claims in Antonakopoulos. Utilizing the four-prong test in United States v. Olano, 507 U.S. 725 (1993), there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 2005 WL 407365, at *4. The first two prongs of the plain error test are met whenever the district court treated the Guidelines as mandatory at the time of sentencing. Id. But to meet the third prong of the test, the defendant must persuade us that there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. "[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice under plain-error analysis." Id. at *6 (citations and internal quotation marks omitted).

Serrano relies upon the district judge's statement at the sentencing hearing: "I have to consider the fact that I cannot sentence him to 60 months. The lowest I can sentence him on that particular situation is 63." This statement, he argues, makes it "clear that the district court would have sentenced [Serrano] to 60 months in prison instead of 63 on count one." Not so. Given Serrano's criminal history category and his role as recruiter, and the amount of drugs involved, the court's statement was a simple statement of fact. The statutory minimum, without the enhancements, was 60 months. He was sentenced to 63 months, out of a possible range of 63 to 78 months. Serrano's argument amounts to an assertion that there was such a reasonable probability that the judge would have totally ignored Serrano's role in the offense and prior conviction and that our confidence in the outcome is undermined by the fact that the judge actually considered these two enhancements. Even post-Booker, the district court "must consult those Guidelines and take them into account when sentencing." Booker, 543 U.S. at __, 125 S. Ct. at 767. And so the court had to consider both role in the offense and his criminal history. Serrano has failed to meet his burden.

But in an interesting concurrence by Circuit Judge Lipez, joined by Circuit Judge Torruella, while agreeing with much of the holding in Antonakopoulos, express disagreement with a critical portion of Antonakopoulos: the requirement that in cases of unpreserved Booker errors defendant bear the burden of showing prejudice.

I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred." Id. at *9.

Judge Lipez then goes on to carefully explain why he favors this approach, and his explanation is certainly the more reasonable and convincing one.

Antonakopoulos ought to be revisited by the en banc First Circuit.

First Circuit's Leadership Role in Blakely Strikeouts

As noted by Professor Douglas Berman at Sentencing Law & Policy here, with the opinion in United States v. Fraser, 2004 WL 2537410, No. 04-1100 (1st Cir. Nov. 10, 2004), the First Circuit maintained its status "as a leader in affirming convictions over Blakely objections on plain error grounds." No liberals at the First!* The Circuit Judges, who share the Courthouse with the Judges from the District of Massachusetts, must wonder at times whether they are from a different planet.

See also our previous post: Is Pedro Martinez pitching at the First Circuit?

* I hope none of the Circuit Judges takes offense at missing out on being labeled with the "L" word.

Is Pedro Martinez pitching at the First Circuit?

The First Circuit is throwing out left and right all Blakely claims raised for the first time on appeal by applying plain error and even discussing whether the claims have been waived rather than forfeited by not having been raised earlier. Feels as if Pedro Martinez were pitching for the First Circuit.

On Monday, November 1st, 2004 the Circuit issued three opinions dealing blows to appellants' Blakely claims. See United States v. Del Rosario, No. 02-2377 (1st Cir. Nov. 1, 2004), United States v. Martinez-Bermudez, No. 02-2419 (1st Cir. Nov. 1, 2004), and United States v. Stearns, No. 03-2340 (1st Cir. Nov. 1, 2004).

And today another Blakely claim struck out in United States v. Coyne, No. 03-2013 (1st Cir. Nov. 4, 2004) (not for publication).

This is certainly not Ameline-land.

More Blakely Plain Error Analysis by 1st Cir. in U.S. v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004)

The First Circuit keeps fidgeting with Almendarez-Torres. In United States v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004) the First Circuit also handled a Blakely claim which involved the continuing vitality of Almendarez-Torres.

Having plead guilty to a one count information, Cordoza-Estrada was convicted of re-entering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced to eighteen months of imprisonment and three years of supervised release.

He appealed his sentence, arguing that his prior conviction for a simple assault was a misdemeanor under New Hampshire law and should not have been treated as an “aggravated felony” under § 1326(b)(2) or U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(C) (Nov. 2002). He also argued that his sentence was invalid under Blakely v. Washington, 124 S.Ct. 2531 (2004).

Moving on to the Blakely claim,

The day before oral argument, Appellant filed a letter pursuant to Local Rule 28(j) arguing that the sentence was unlawful on the ground that Blakely v. Washington, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), undermine the Supreme Court’s ruling in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that the prior “aggravated felony” language of 8 U.S.C. § 1326(b)(2) refers to a sentencing enhancement, not to an element of the offense. The letter also advocated that Appellant should be resentenced because post-Blakely, the Federal Guidelines are merely advisory.

Since Appellant’s argument depends upon a decision that did not exist at the time of briefing, a 28(j) letter is a perfectly appropriate avenue by which to present it –- such letters are intended to provide the court with new authority. See Freeman v. Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (accepting Rule 28(j) letter making new arguments where they could not have been made before and the relevant statute permitted court to order new evidence taken at any time). The Government does not argue that the issue was raised in an untimely manner and has filed a Rule 28(j) letter in response.

The parties agree that the standard is plain error. Under the plain error test, an appellant “‘bears the burden of demonstrating (1) an error, (2) that is plain, (3) that affects substantial rights (i.e., the error was not harmless), and (4) that seriously undermines the fairness, integrity, and public reputation of judicial proceedings.’” United States v. McCormack, 371 F.3d 22, 29 (1st Cir. 2004) (quoting United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 48 (1st Cir. 2004)).

In Apprendi, the Supreme Court stated: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). Blakely did not disturb the distinction between “the fact of a prior conviction” and other facts that “increase the penalty for a crime beyond a prescribed maximum.” Blakely, 124 S. Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge’s consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction. See United States v. Cotton, 535 U.S. 625, 632 (2002) (in a review of an Apprendi error, holding that the “third inquiry usually means that the error must have affected the outcome of the district court’s proceedings”).

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was “plain.” Compare United States v. Duncan, __ F.3d __, 2004 WL 1838020, at *3-*5 (11th Cir. August 18, 2004) (holding that any Blakely error was not “plain” under the plain error standard of review) with United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (holding the contrary).

In determining whether the error was plain, the Supreme Court has explained: “Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.”

Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. See, e.g., United States v. Booker, 375 F.3d 508 (7th Cir. 2004) (Posner, J.) (holding the Guidelines unconstitutional) (Easterbrook, J., dissenting), cert. granted, ___ S. Ct. ___, 2004 WL 1713654; United States v. Hammoud, ___ F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8, 2004) (en banc) (upholding the Guidelines) (Wilkinson, J., Shedd, J., Widener, J., concurring; Motz, J., Michael, J., Gregory, J., dissenting); United States v. Koch, ___ F.3d ___, 2004 WL 1899930 (6th Cir. Aug. 26, 2004) (en banc) (upholding the Guidelines) (Martin, J., Daughtrey, J., Moore, J., Cole, J., Clay, J., dissenting). Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal. Because the trial judge’s sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.

Affirmed.

So what exactly does it take to get past the Frist Circuit, other than a writ of certiorari?

U.S. v. Savarese - First Circuit Applies Plain Error to Blakely Claim

      In U.S. v. Savarese, No. 04-1099, 2004 U.S. App. LEXIS 19824 (1st Cir. September 22, 2004), a case involving the interpretation of section 2B3.1 of the U.S. Sentencing Guidelines, which provides for a two-level enhancement of a defendant's offense level if the defendant engaged in carjacking. -see U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003) - the defendant also raised a Blakely claim. While the decision is an issue of first impression on the USSG § 2B3.1(b)(5), and should ber read if for no other reason than that, we refer herein to the Court's handling of the Blakely claim.

[...] However, we conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.

The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese’s sentence for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); see also United States v. Cotton, 535 U.S. 625, 631 (2002) (holding that an Apprendi violation can be considered under plain error analysis); United States v. Duncan, ___ F.3d ___, ___, 2004 WL 1838020, at *2 (11th Cir. Aug. 18, 2004) (“[B]ecause Duncan failed to raise a Sixth Amendment argument below, our review is limited to determining whether setting the base offense level based upon the sentencing judge’s finding of cocaine base constitutes plain error in light of the Supreme Court’s holding in Blakely.”); United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (“Because Ameline did not object to his sentence on the grounds that the Sentencing Guidelines or the procedures used to determine the material sentencing facts were unconstitutional under Apprendi, or on the ground that the material sentencing facts were not alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt, we review for plain error.”); United States v. Donnelly, 370 F.3d 87, 92 (1st Cir. 2004) (reviewing a sentencing enhancement for plain error where the defendant failed to address the second element of the enhancement in his objection).

In determining whether an error is plain, the court considers four factors:

[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Cotton, 535 U.S. at 631-32 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)) (internal quotation marks, alterations, and citation omitted). We conclude that at least the last of these four requirements has not been satisfied.

One cannot fault the First Circuit, since it is abundantly clear that appellant never raised any objection to any of the facts underlying any of his Blakely claim on appeal.

More from the First Circuit on Blakely - and it's not good

In United States v. Morgan, No. 03-1768 (1st Cir. September 2, 2004) (not for publication), the First Circuit addresses issues of "waiver" and "forfeiture" of claims (in this case a Blakely claim).

Morgan was sentenced before Blakely was decided, and he contested the drug quantity at sentencing. The appeal followed, and Blakely was decided after oral argument. Appellant's counsel submitted a post-argument letter pursuant to Fed. R. App. P. 28(j) seeking additional review of his sentencing in light of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).to the Court raising the Blakely claim. The First Circuit recognized that

Blakely could potentially affect the trial court’s sentence in the present case, which was based partially on its own finding holding Morgan responsible for between 80 and 100 kilograms of marijuana as the amount that he could reasonably foresee within the scope of the criminal operation. Blakely raises the possibility that this fact should not have been decided by the judge, but instead needed to have been determined by a jury or admitted by the defendant.

Morgan, slip op. at 14. But the Court then went on to state as follows:

Morgan never raised this Blakely issue at the trial court, in his
original briefs to this court, or in oral argument. Instead, he presented the issue to this court for this first time after oral argument.

When an argument has been waived, no review is possible, unless the court engages in the rare exercise of its power to excuse waiver. But when an argument has merely been forfeited, plain error review may be available. See United States v. Mitchell, 807 F.3d 800, 807 (1st Cir. 1996). Waiver is the intentional relinquishment or abandonment of a right; forfeiture is generally defined as the mere failure to raise an issue in a timely manner. See United States v. Olano, 505 U.S. 725, 733 (1993); United States v. Rodriguez, 311 F.3d 433, 437 (1st Cir. 2002).

The question now is whether plain error review is available in this situation. When a party merely fails to raise an issue in proceedings below but does raise the issue on appeal, we will still review that issue for plain error. See, e.g., United States v. Thurston, 358 F.3d 51, 63 (1st Cir. 2004); United States v. Matos, 328 F.3d 34, 43 (1st Cir. 2003). But this case is a bit different; Morgan neither raised the issue below nor initially in this court. The normal rule is that new issues cannot be raised at all in a rule 28(j) filing, see United States v. Nason, 9 F.3d 155, 163 (1st Cir. 1993). A more difficult question is whether such a rule is appropriate where a party is raising a new issue in response to a potentially crucial Supreme Court decision that issued only after briefing and oral argument were completed. After Apprendi was issued, several defendants filed rule 28(j) letters with this court: we agreed to consider the Apprendi issue, but only on plain error review. See United States v. Baltas, 236 F.3d 27, 41-42 (1st Cir. 2001); United States v. LaFreniere, 236 F.3d 41, 48-50 (1st Cir. 2001).

We need not definitively resolve whether plain error review would be available in this case, because even assuming arguendo that it is, Morgan's Blakely argument could not prevail using such a standard.

In the post-Apprendi world, this court adopted a rule that any such error in sentencing should be held harmless so long as the evidence for the trial judge’s factual findings is overwhelming and no reasonable jury could have disagreed with them. See Sustache-Rivera v. United States, 221 F.3d 8, 18-19 (1st Cir. 2000). This rule does not apply to the present case. The judge’s determination was surely reasonable, but given the convoluted state of the evidence presented at the sentencing hearing, we cannot say the court’s findings were compelled by the evidence.

Plain error review is extremely deferential; errors will be corrected only if (1) . . an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); see Olano, 505 U.S. at 732-37. Under existing post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is no greater than that which could be imposed based on the total quantity of drugs that the jury had found for the conspiracy as a whole. See Derman, 298 F.3d 34, 42-43. Because the trial judge acted in accordance with circuit precedent, we cannot say plain error occurred, and we need not proceed further.

Morgan, slip op., at 14-17. This is one hell of a Catch-22! About the only "positive" thing that one can say for this opinion is that the Court has still opted for a rule that the blind ought not to lead the blind as far as offering "guidance" on Blakely. And, as far as I'm concerned, that is a good thing.

First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited

In United States v. Carlos Lopez, No. 03-1767 (1st Cir. August 19, 2004), the Court stated at n. 1:

Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case. Blakely held that a sentence that was enhanced on the basis of factors found by the judge, rather than the jury, violated the defendant's constitutional right to trial by jury. The appellant in this case, however, received the minimum statutory sentence, and counsel has offered no explanation as to why Blakely would apply. The argument is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal pertinent facts or engage in reasoned analysis).

So, we still do not have "guidance" from the First Circuit, but neither do we have any dumb orders saying that the guidelines should continue to be applied as if Blakely had never been decided. In other words, the First still believes that the blind ought not to lead the blind.