Puerto Rico Association of Criminal Defense Lawyers

PRACDL "Tertulia Legal" - Sentenced in Two Jurisdictions

PRACDL will be hosting one of our regular tertulias on the topic  Sentenced in Two Jurisdictions - when sentences run concurrently and consecutively.

    Date     :    Thursday, June 5, 2008
    Time    :    4:30-6:00 p.m.
    Place    :    Judge García Gregory’s Courtrooom (#6)

Resources:    José Cordero, of FPD-PR, formerly of BOP
                    Jorge Rivera Ortíz, PRACDL
Moderator:    Linda Backiel

If you are interested in attending, please confirm via email at pracdl@gmail.com. The cost is free, as are the materials, although there will be no CLE credit for this one.

Legal Chat to Discuss Crack Resentencings in the District of Puerto Rico

This coming Friday, February 29, 2008 at 4:00 p.m., PRACDL and the Federal Public Defender's Office will co-host a conference to discuss the crack guidelines amendment and the retroactivity of same, as well as the District Court's Administrative Directive dealing with these. This will be held at the Federal Public Defender's Offices (4th Floor) and is open to all PRACDL members and Assistant Federal Public Defenders.

District of Puerto Rico Administrative Order re: Implementation of Crack Retroactivity Guideline

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).
 

Is the First Circuit Recognizing Greater Deference Due District Court's Sentencing Decisions?

In United States v. Milo, No. 06-2185 (1st Cir., Oct. 30, 2007), the First vacates and remands a sentence of time served (about 15 days) imposed by Judge Gertner on a defendant who cooperated and was contrite. But the First leaves open to the District Court to either explain more her sentence or to resentence Milo to a higher term. Throughout the opinion one gets the feeling that Chief Judge Boudin is recognizing a greater deference due to the district court's choice of sentence, and that is very good news.

Gall and Kimbrough - Briefs, Trancripts and Links to Coverage

Just to keep as a reference, here are the briefs and oral argument transcripts in Gall v. US, No. 06-7949 and Kimbrough v. US, No. 06-6330:

• Gall v. US - Petitioner's Brief
• Gall v. US - Government's Brief
• Gall v. US - Petitioner's Reply Brief
• Gall v. US - Oral Argument Transcript

• Kimbrough v. US - Petitioner's Brief
• Kimbrough v. US - Government's Brief
• Kimbrough v. US - Petitioner's Reply Brief
• Kimbrough v. US - Oral Argument Transcript

As we know, Gall was a substitute for Claiborne, which was dismissed after oral argument last term upon petitioner's death. You can listen to the oral argument in Claiborne here.

Lyle Denniston at SCOTUSblog has a good analysis of the oral arguments in Gall and Kimbrough in Analysis: More Trouble for the Guidelines. Doug Berman at Sentencing Law and Policy provides coverage and links at Gall and Kimbrough SCOTUS argument wrap-up.

Chat with Judge Gertner on Sentencing Issues

PRACDL invites all defense attorneys to attend a chat with U.S. District Judge Nancy Gertner on sentencing issues, on Tuesday, June 19, 2007 at 4:00 p.m., at the Chief Judge's Courtroom. This is a special treat you should not miss out on. There is no cost for attending. This will be followed by a cocktails at El Deli (cash bar).

Need to Avoid Unwarranted Sentencing Disparity

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.

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.

. . . and then take that great discretionary leap

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.

Wilkerson from the First: the Complete Story

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.