Sunday, January 30, 2005

Booker: US v. Ranum, a defense roadmap

Booker sentences are now coming fast and furious, and a key challenge for the defense is proving structure to skittish district court judges unaccustomed to sentencing outside of the guidelines. Judge Adelman of Wisconsin provides a persuasive and thoughtful approach in this case, United States v. Ranum, 04-CR-31 (E.D. Wisc. Jan. 19, 2005) (available here.) Ranum is an important decision that will be useful for the defense suggesting sentencing structure in the post-Booker world.

Players: Judge Lynn Adelman, author of a key post-Booker decision.

Facts: Ranum was a bank officer who made a series of loans to a promising shipping company, but lied to the bank committee about the company’s reserves. Opinion at 7. He was charged with misapplication of funds and false statements. Id. at 8. After conviction at trial, he faced a guideline range of 37-45 months in custody. Id. at 9. Before sentencing, Booker was decided.

Issue(s): How does a federal court sentence a defendant after Booker?

Held: "In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors." Id. at 1-2. "I determined that the factors set forth in § 3553(a) fell into three general categories: the nature of the offense, the history and character of the defendant, and the needs of the public and the victims of the offense. I analyzed each category and in so doing considered the specific statutory factors under § 3553(a), including the advisory guidelines." Id. at 10.

"In the present case, after carefully considering all of the evidence and applying all of the § 3553(a) factors, I declined to follow the guidelines and instead imposed a sentence which was sufficient, but not greater than necessary, to satisfy the purposes of sentencing." Id. at 5. "I impose[] a sentence of twelve months and one day, followed by five years of supervised release." Id. at 13.

Of Note: The decision nails the new Booker responsibilities: "Sentencing will be harder now than it was a few months ago. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not as an invitation to do business as usual." Id. at 5.

How to Use: Ranum is a roadmap for effective use of the § 3553 factors. Judge Adelman found mitigating factors in the nature of the offense: the defendant was not motivated by personal gain, and the case was unusual in that the shipping company had promise. Id. at 11. He also found mitigating factors in the nature of the offender: he was fifty years old, with no record, health problems, and took care of his elderly and ill parents. Id. at 12. Community support also showed his good character, and this case had cost the defendant another job. Id. Moreover, imprisonment would do not good to the defendant and society. Id. at 13.

When using this case, it is important to emphasize that this is not some flight of fancy by a suspect liberal. The defendant still received imprisonment, because of the seriousness of the offense. Id. at 13. Ranum is not an aberration; it is the proper and careful application of the controlling law: 18 USC § 3553(a).

For Further Reading: Judge Adelman has a long history of doing the right thing, despite political fall-out. In 2003 he reversed a very high-profile state murder case because of jury bias – and took the heat for that decision. See article here.


Blogger chipesq said...

It has happened! A federal appeals Court in Richmond, Virginia has held that the applying the federal sentencing guidelines after Booker is PLAIN ERROR, in other words an error so fundamental that the sentencing must be re-done in almost all cases which were sentenced after June 26, 2000.

See, * United States v. Hughes, ___ F.3d ____, 2005 WL 147059, 2005 U.S. App. LEXIS 1189(4th Cir. Jan. 24, 2005) (finding plain error in sentencing of defendant under mandatory guideline scheme and remanding for resentencing under advisory scheme)


Mr. Hughes, a white collar criminal, was convicted of bankruptcy fraud and perjury, (traditionally considered white collar crimes). The District Court had applied five different enhancements, raising Mr. Hughes offense level from a 6 to a 22, and taking him from a range of 0-6 months imprisonment to 41 to 51 months. Ultimately the judge sentenced this white collar offender/criminal with no prior convictions to 46 months in prison.

The Fourth Circuit, a court not exactly known for its leniency to convicted criminals reversed. In a remarkable decision, the Court held that "PLAIN ERROR" had occurred. In other words, that the denial of Mr. Hughes's Sixth Amendment rights was so substantial that he could not be faulted for failing to object at the time of sentencing.

What does this all mean? The Plain Error ruling of the Fourth Circuit is huge in terms of impact of federal prisoners and specifically, white collar offenders. Many white collar offenders and other federal prisoners' lawyers failed to object at the time of sentencing to judges enhancing their sentences. (This is not meant to criticize those lawyers, it is reasonable to assert that no one could have seen the Apprendi/Booker revolution comming).


If you are a federal prisoner, the Hughes ruling can help in a very dramatic fashion. It can persuade a judge to give you another chance at sentencing, and it can help the judge reduce your sentence.

Mr. Chip Venie was a former Fourth Circuit Staff Attorney and is intimately familiar with the procedures for obtaining resentencing relief in that Court. In addition, Mr. Venie is a member of the Ninth Cicruit bar and can help you pursue your federal appeal in almost all western states. Mr. Venie has handled over 130 Federal Criminal Appeals and Habeas Petitions.

Chip Venie
(619) 235-8300

Thursday, February 03, 2005 5:48:00 AM  

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