Booker: ex post facto independent of due process

The Booker remedial opinion presents a sui generis approach to statutory construction. The Court interpreted the Sentencing Reform Act to provide mandatory guidelines with the proviso that, if the Supreme Court held the Sixth Amendment to apply to guideline enhancements, Congress intended that the mandatory provisions be severed and excised, leaving a new advisory sentencing scheme in place of the old mandatory statute. Because the statutory amendment was triggered by the judicial decision in Justice Stevens’s constitutional majority, the defense has largely looked to Bouie due process as the locus for ex post facto protection. The ex post facto clause of Article 1, Section 9, Clause 3, should be read to provide independent protection for those disadvantaged by the remedial statutory guidelines.

The SRA, as remediated in the Supreme Court, is an ex post facto law to the extent it is applied retrospectively to persons who are disadvantaged by the new SRA and whose offense occurred prior to January 12, 2005.The statutory approach provides a more familiar and easily applied ex post facto analysis. Although Bouie and its progeny provide an alternate route to ex post facto protection, treating the altered SRA as the legislative creation it is, rather than as a statute with an unexpected judicial definition of a statutory provision, provides a more direct route to protect defendants disadvantaged by the new version of the SRA. The modified excerpt from a brief by Oregon AFPD Chris Schatz (here) demonstrates how the due process and ex post facto arguments complement each other.

The ex post facto clause prohibition forbids Congress from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Cummings . As the Court made clear in Calder in 1798, the "enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty." The Supreme Court has applied the ex post fact clause to bar retroactive application of a disadvantageous change in the burden of proof for an offense (Carmell)(quantum of evidence necessary to prove rape), the "formula" used to determine a defendant’s sentence (Morales)("[T]he Ex Post Facto Clause forbids the States from enhancing the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range"), and the discretionary options available for a less onerous sentence (Miller).

The Booker remedial opinion construes the SRA to have a specific savings provision. Justice Breyer defined the task imposed on the Court by Justice Stevens's merits opinion as discerning Congress’ likely intent if the Sixth Amendment were to apply to sentencing enhancements: "we have examined the statute in depth to determine Congress’ likely intent in light of today’s holding." (emphasis in original). The construction of a statute by the Supreme Court results in an authoritative statement of "what the statute meant before as well as after the decision of the case giving rise to that construction" (Bousely & Rivers). Hence, Justice Breyer’s opinion effectively states that, to read the SRA according to the intent of Congress, it must be read as if, from its inception, it provided for the severance of §§ 3553(b)(1) and 3742(e) in the event the Supreme Court applied the Sixth Amendment’s jury trial entitlement to guideline enhancements.

The contingency (i.e., application of the Sixth Amendment to the Sentencing Guidelines) has now occurred with the pronouncement of the Booker merits opinion. However, because the new sentencing law, in which the Sentencing Guidelines are advisory only, has, by Congressional intent, only come into operation after January 12, 2005, the new SRA cannot be imposed on defendants to their disadvantage without violating the ex post facto prohibition of Article I, § 9, cl. 3, regardless of forseeability (Miller)("The constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed.").

The straight ex post facto analysis has the virtue of being familiar and easily applied. From the outset of the amendment process to the Sentencing Guidelines, the courts have uniformly applied the ex post facto clause to disadvantageous amendments. In fact, the Sentencing Commission institutionalized the analysis by adopting the "one book rule" in U.S.S.G. § 1B1.11 in 1992. In footnote 17 of the Second Circuit’s post-Booker Crosby case, the court expressly leaves the potential ex post facto question open by reference to a pre-Booker guideline case, implicitly recognizing the analogy to amendments under the Sentencing Guidelines.

Given the Booker remedial opinion’s unprecedented statutory construction and reformulation of the SRA, the prohibition on retrospective laws is perfectly appropriate: Congress shall pass no ex post facto laws. If the Supreme Court is giving the SRA a construction that Congress would have excised the mandatory provisions upon a certain Supreme Court ruling, Congress must follow the constitutional limitation by only allowing prospective application to defendants disadvantaged by the new law.

The class of disadvantaged defendants is discrete and to some extent self-defining. Defendants are clearly disadvantaged who entered post-Blakely pleas or went to trial, with enhancements barred by the lack of admissions or proof to a jury, especially where jeopardy barred convening of a sentencing jury (Patterson). On the other hand, the ex post facto analysis will be irrelevant for those defendants for whom relief from mandatory guidelines is beneficial. Given the Ninth Circuit’s broad requirement that "the existence of discretion requires its exercise" (Miller, 722 F.2d at 565), many defendants will not be disadvantaged but will potentially benefit from the opportunity for resentencing with judicial discretion to impose a lower sentence.

Case o' The Week: Bockting, Crawford Retroactive for Habeas

Nevada Federal Defender Franny Forsman garners a great defense win in Bockting v. Bayer, __ F.3d __, 2005 WL 406284 (9th Cir. Feb. 22, 2005), available here. In Bockting, the Ninth Circuit holds that Crawford is retroactive for federal habeas petitions.

Players: A tremendous victory by Nevada Federal Defender Franny Forsman.

Facts: Petitioner Bockting was convicted in Nevada state court for sexual abuse of his six-year old stepdaughter, and received life in prison. 2005 WL 406284, * 1-*2. The girl was declared an unavailable witness at trial, and her hearsay statements were admitted against the defendant. Id. at *2. Bockting went through a long appellate road, with appeals to the Nevada State Supreme Court, with the U.S. Supreme Court vacating and remanding the decision, reaffirmance in the state courts, appeals, and a second petition for habeas relief which ultimately ended up in the Ninth. Id.

Issue: "The question before us is whether the Confrontation Clause principles stated in Crawford amount to a new rule [in the context of habeas review]." Id. at *3.

Held: "[A]pplication of the Supreme Court’s guidance in Teague leads to the conclusion that Crawford announces a ‘new rule.’ Because the Crawford rule is both a ‘watershed rule’ and one ‘without which the likelihood of an accurate conviction is seriously diminished" . . . the rule is retroactive." Id. at *2 (citations omitted) (emphasis in original).

Of Note: The Court first concludes that "an analysis of the historical application of the Confrontation Clause cases leads to the conclusion that Crawford announces a new rule that must be put through the Summerlin strainer." Id. at *5. After sifting through this strainer, the Court concludes, "Viewing Crawford in light of Summerlin leads to the conclusion that the Crawford cross-examination requirement merits retroactive application." Id. at *5. The decision is a product of a concurrence, with Judge Noonan articulating an alternative rationale and concurring in the majority reasoning as well. Id. at *11. Judge Wallace concurs and dissents. Id. at *12.

How to Use: This brief memo is not the place for an in-depth habeas discussion. Nonetheless, practitioners should look back over prior convictions after trials, and focus whether hearsay evidence of any type was admitted – if those cases meet the myriad AEDPA hurdles discussed in depth in Bockting, a habeas petition may be in order. Particularly strong candidates for a Bockting petition are sex abuse cases, where hearsay child witness statements were admitted. Those statements don’t fall within an arguably non-testimonial hearsay category, and are almost always central to the conviction.

For Further Reading: As the Court itself notes, Bockting furthers a circuit split on the retroactivity of Crawford. Id. at *8. Nevada state prosecutors are planning further (unspecified) appellate action. See article here. Supreme Court action seems likely – if not on Bockting, then to resolve the issue using another case within the next term or two.

Steven Kalar, Senior Litigator N.D. Cal. FPD.

Morrison v. Mahoney

No. 03-35161 (2-23-05). Petitioner "won" on a previous appeal on the issue of equitable tolling. The case goes back to the federal district court, where the state now raises procedural default. The petitioner argues that, hey, the state waived this defense when it asserted equitable tolling, and when it submitted a filing that the case could stay in federal court. The 9th held that the state didn't waive its procedural challenges when it took the case up, and that the remand puts things back as if new. (This case has language about remands that might be useful if we wish to raise issues).

US v. Jeronimo

No. 03-30394 (2-23-05). One of the supposed benefits of the Guidelines when enacted in 1984, and in the eyes of theoreticians, was that sentences would be reviewed by appellate courts. There would be an established jurisprudence on guidelines, and sentences would be assessed. Alas, theory meets practice. "Departures" were made wholly discretionary and unreviewable (talk about disparity), and then came the waiver of appeal as to the guidelines sentences. It is unfortunate that Booker may also lead this way. Well, enough of an editorial aside, back to this case, where the defendant entered into a plea agreement that he says his lawyer promise him would result in a max guideline range of 87 mos. Pesky thing is one's criminal history, because this pushed him up to 188 mos. However, at the Rule 11 colloquy, the court intoned that he could face up to 20 years. The plea also had that "waive any and all rights of appeal." The 9th (Gould) wrote that this slams the door shut on any challenge to the plea and sentence, once it was found to be knowing. Post-conviction was the route to go for IAC. In dissent, Berson argued that the majority missed the boat in that the issue was knowing and voluntary, and if the defendant, on the record presented, stated that he was told it would be only 87 mos, then how could the plea be knowingly.

US v. Osife

Defendant was arrested for public urination (someone spied him pissing by his car). He was arrested, and then his car was searched. A gun was found, and the defendant as convicted of being a prohibited possessor. Defendant argued that the arrest had to be connected with the actual offense, trying to limit Thornton on v. US, 124 S. Ct. 2127 (2004). Thornton held that a car could be searched even if the occupant was outside whether or not there was a reasonable chance of finding evidence. The distinction that defendant tried to draw was that the evidence had to be in principle related to the vehicle, and public urination wasn't. Defendant used the concurrence of Justice Scalia (joined by Justice Ginsberg) in Thornton that drew this distinction. The 9th was sympathetic to the argument, and granted that the 4th amend jurisprudence is getting stranger and stranger as it goes through this convolutions -- but in the end held that the Supremes ruled, and that 7 votes would have a car searched if the defendant had been a recent occupant, keeping the fiction that he coudl escape handcuffs and run to the car to get a weapon.

Bocting v. Bayer

Crawford. In this case, the defendant got a life sentence for sexual abuse although the only witness, his six year old stepdaughter, did not testify at trial. The interview with the police was admitted at trial, although it contradicted her testimony at the preliminary hearing, when she claimed she could not remember what took place. What affect should Crawford be given on post-conviction? The 9th splinters. Judge McKeown holds that Crawford, despite its "historical basis" is really a new rule, but fulfills the Teague exception in that it is "watershed" ruling that is implicit in an ordered concept of liberty. For Judge McKeown, the truth seeking aspects of Crawford are essential for the ordered liberty, and must be applied retroactively. Judge Noonan agrees with the result, but he would find that Crawford is not a new rule, but is rather a reaffirmation of an old rule that had been misinterpreted by Ohio v. Roberts. Judge Wallace, dissenting, argues that Crawford must be considered a new rule, but it is a rule of procedure, and that fact that courts had to find, under Roberts, that admitted statements had guarantees of trustworthiness made it not the watershed rule promoted by judge McKeown but a different means of testing evidence.

US v. Moreno-Hernandez

No. 03-30387 (2-18-05). The 9th grapples with what is, or is not, a felony that is a crime of violence under 2L1.2(b)(1)(A)(ii). Here, under Oregon law, a 4th degree assault is normally a class A misdemeanor EXCEPT when it is done in the presence of a victim's minor child, when it can be punished by up to 5 years in prison. The question becomes whether this enhancement is considered in determining whether the underlying offense is a felony. Defendant argues that precedent, notably Pimental-Flores, 339 F.3d 959 (9th Cir. 2003) and Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc), should preclude enhancements such as this, because it lies outside the base offense. The gov't counters that such an argument would transform most offenses to their lesser included elements, which are misdemeanors. The 9th was unwilling to venture down that path, drawing the line "where the sentencing factor is based on the circumstances of the crime itself." Recidivist statutes, based on prior criminal records, are not considered, but the facts in the offense that lead to a bump are. In this case, Blakely does not make a difference because it concerns the maximum of the sentence on the books. However the case is remanded anyway in light of Booker.

Case o' The Week: Charley, detention vs. arrest and confessions

This tragic case is an appeal from three federal murder convictions and six consecutive life sentences. In United States v. Charley, __ F.3d. __, 2005 WL 246347 (9th Cir. Feb. 3, 2005), the Ninth Circuit holds that a Native American woman "detained" in a police car and driven to the crime scene was not "arrested." The disappointing decision also holds that a "Sixth Amendment" invocation of the right of counsel is not a "Fifth Amendment" invocation, preventing further law enforcement interrogation.

Players: Judge Gould + totality of circumstances = defense loss.

Facts: Elvira Charley, a Native American, shot her three children with a .22 rifle, called the police, and went to her relatives’ house. 2005 WL 246347 (WL page numbers not available at writing). A deputy responded, and Charley said that he needed to check on her children and "that she’d done something very bad." The deputy told her she was being "detained," and took her to her house in a patrol car. She said, "You’re going to have to take me away for a long time." She ultimately appeared in tribal court and asked for a lawyer. After this appearance, a federal agent interviewed her on her way to federal court, where she made another confession. She was convicted of federal murder charges and received six life sentences.

Issue(s): 1. Should the initial statements to the deputy be suppressed because Charley was unlawfully arrested without probable cause? 2. Should the second set of statements to the federal agent be suppressed, because Charley had asked for counsel at the tribal court?

Held: 1. The defendant was not "arrested" but "detained" during the initial confession."[T]he district court did not err in finding Charley was not in custody when Sergeant Billie detained her and escorted her from the Begay residence to her own home." Because there was reasonable suspicion for the detention, there was no Fourth Amendment violation. 2. The second confession was not tainted, because Charley invoked her Sixth Amendment right to counsel at the tribal court appearance, but did not invoke her Fifth Amendment right to counsel. "Invocation of the Sixth Amendment right to counsel alone does not constitute an invocation of the Miranda-Edwards Fifth Amendment right to counsel."

Of Note: Charley is most likely to be cited against the defense for its analysis of the "detention/arrest" distinction. Judge Gould applied a "totality of circumstances" approach to determine that this woman, who was told she was detained and who was put in a patrol car, was not "arrested" and therefore was not entitled to a probable cause showing. A week after Charley, Judge Gould applied another "totality of circumstances" analysis to deny a different Fourth Amendment claim. See United States v. Martinez-Garcia, __ F.3d __, 2005 WL 326844, *1 (9th Cir. Feb. 11, 2005).

Equally unpersuasive is the Court’s holding on the second issue, regarding invocation of counsel. Charley successfully invoked her right to counsel before being interrogated by the federal agent, but this emotionally distraught Native American woman invoked her Sixth instead of her Fifth Amendment right. In other words, she would have had constitutional protections, but she was one amendment off.

How to Use: Distinguish Charley in Fourth Amendment cases by the unique facts of the case; the defendant called police dispatch, she made a number of inculpatory statements before being detained, the deputy clearly informed her that was detained, not arrested, and he explained that the trip in the patrol car was only to "find out what’s going on." Anticipate the government’s distillation of Charley for a blanket rule that being placed in a patrol car is only a detention, not an arrest – and fight this oversimplification with these unusual aspects of the case.

For Further Reading: This case is almost too tragic to report. Not reflected in the decision is Ms. Charley’s repeated pleas with Indian Social Services as her life, and her ability to provide for her children, spun out of control. A victim of domestic violence, she lived in a 600 square foot house with her three children, and with no utilities. For a moving description of the unwritten background of this case, visit the Indian Country Today article here.

Steven Kalar, Senior Litigator ND Cal.

Ameline Update

The government has filed a motion to defer disposition of all pending direct criminal appeals presenting Booker claims pending resolution of the government's petition for rehearing en banc; to expedite consideration of the decision whether to rehear this case en banc; and, if the petition is granted, for expedited oral argument (available here) and a petition for rehearing en banc (available here).

Cooper-Smith v. Palmateer

Cooper-Smith v. Palmateer, No. 03-35794 (2-16-05). Petitioner raised IAC claims, arguing that counsel failed to mount a suppression hearing, and call his own mental expert. In assessing the IAC claim, the 9th found error in the use of the state’s (Oregon’s) IAC standard: the state used “more probable than not” rather than Strickland’s “reasonable probability” standard for prejudice. Alas, using a de novo approach, no ineffectiveness was found because the petitioner had agreed to a bench trial with stipulated facts, so the abandonment of the suppression claim was like a 4th amendment claim waived by a plea colloquy: its gone. Moreover, the petitioner had mounted another challenge, to photo i.d., and so the decision for a bench trial was knowingly and with eyes open. The failure to call a mental health expert (as for dangerous offender) wasn’t prejudicial, because the defense doctor’s report was submitted. The district court declined to expand the record for an affidavit from the doctor under Rule 7, finding that the requirements of 28 USC 2254(e)(2) applies, and the 9th affirmed that decision. Lastly, the 9th brushed off the Apprendi challenge, finding it wasn’t retroactive under Sanchez-Cervantes or Ring or Blakely.

U.S. v. Ruiz-Alonso

US v. Ruiz-Alonso, No. 03-50125 (2-11-05). Defendant got a four level departure in a 1326 case for cultural assimilation. He still got sentenced to 46 mos. The gov’t wasn’t happy with this and so appealed. They were so unhappy that they appealed without getting the approval of the Attorney General, the SG, or a deputy SG. Moreover, not only didn’t they get approval, they didn’t get “personal approval.” Why is this important? Well, 18 USC 3742(b) explicitly states, and it wasn’t excised in Booker, that for a gov’t appeal, the “personal approval” has to be given by the aforementioned persons. Sounds like a bright line. Well, it may be bright, but it isn’t jurisdictional. The statute, again, is merely aspirational; the 9th won’t treat it as a jurisdictional requirement because, well, Congress really didn’t mean it to be that strict, and besides, one can get approval afterwards, and the clock is ticking, and oh yes, it is a housekeeping DOJ matter. The 9th joins six other circuits in this approach, and rejects the analogy to a COA. As for the departure itself, the 9th humpfs that it has jurisdiction, and then vacates in light of Booker.

U.S. Martinez-Garcia

US v. Martinez-Garcia, No. 03-30532 (2-11-05). Can’t speak English? Don’t understand the warrant? Not a problem, because, you see, the 4th amendment’s protections for defendant’s white house with pink trim (suspected of harboring a meth lab) are, when it comes to reading the warrant, merely aspirational, requiring a bit of “good faith,” and a shrug while the Spanish interpreter is summoned. So, for an hour and forty minutes we can rummage through the house, because we complied with the warrant requirement, and only then does the defendant get a chance to understand. It’s good enough for the 9th. As for the claim that the search failed to comply with Rule 41, well, this was a state search, see, with state police, and a state magistrate, so that although the evidence was used in federal court, we don’t need to bother with pesky federal statutes. Finally, as for Franks and some, well, misstatements, heck, they weren’t intentional, and so no hearing.

Supplementing the record on appeal

Our offices are often appointed by the Ninth Circuit on cold record appeals and it is sometime the case that we find crucial documents supporting our arguments that are not part of the record. What to do?

There's always F.R.App.P. 10(e)(2), which permits correction or modification of the record, but that's available only when material is "omitted from or misstated in the record by error or accident." The Sixth Circuit recently issued a decision, summarized on the Appellate Law and Practice Blog, explaining that courts of appeal also have inherent equitable power to augment the record, and that their discretion to do so is informed by several factors, the last of which is particularly relevant for our habeas cases:

The second case cited in this Court's Order as supporting the Court's discretionary power to allow for the record to be supplemented after judgment is entered, Dickerson v. State of Alabama, 667 F.2d 1364, 1367 (11th Cir.), cert denied, 459 U.S. 878 (1982), lists several factors to be considered in deciding whether to exercise that discretion. They are: 1) whether proper resolution of the case was beyond any dispute, 2) whether it would be inefficient to remand to the district court for review of additional facts, 3) whether the opposing party had notice of the existence of the disputed evidence, and 4) whether the case is before the court on a habeas corpus claim, because federal appellate judges have "unique powers" in that context. Dickerson, 667 F.2d at 1367-68.

The case is U.S. v. Murdock, No. 03-1811, available at http://156.125.5.91/opinions.pdf/05a0073p-06.pdf (sorry, I still haven't figured out how to put in a link).

Case o' The Week: Martinez-Garcia, delayed service of search warrants

In this disappointing decision, the Ninth holds that under the "totality of circumstances" there was no Fourth Amendment violation when officers searched a house before explaining a warrant, in Spanish, to a Spanish-speaking defendant. Equally unconvincing is the Court's rejection of a Franks challenge regarding "colorful" informant Brian Doland.

Players: Hard-fought case by AFPD Tonia Moro.

Facts: Martinez-Garcia entered a conditional plea to being an alien in possession of a firearm. United States v. Martinez-Garcia, __ F.3d __, 2005 WL 326844, *1 (9th Cir. Feb. 11, 2005), available here. A state police officer got a search warrant, based on the insights of confidential informant "Doland." Id. at *1-*2. The affidavit failed to mention that Doland had pending drug charges against him in federal district court, that the task force had agreed to give a favorable recommendation in exchange for Doland’s cooperation, or that the defendant was just one of three brothers that lived in the house. Id. at *2. When the officers served the search warrant the defendant said he did not speak English and asked what was going on. Id. at *2. The officers called a federal agent who spoke Spanish, removed the defendant and his family, and searched the house until the agent arrived and explained the search warrant. Id. at *2-*3.

Issue(s): 1) Did the officers violate "the Fourth Amendment by not serving the warrant at the out set of the search and that the handgun should be suppressed as the fruit of an unlawful search?" Id. at *3. 2) "We . . . consider whether the district court properly denied a Franks hearing on Martinez-Garcia’s remaining claims." Id. at *7.

Held: 1) "We . . . hold that the law enforcement officers did not act unreasonably in delaying service in light of the totality of the circumstances facing them . . . The officers tried to serve the warrant in good faith, were unable to do so on account of a language barrier, and promptly called for interpretive assistance. They served the warrant as soon as was practicable – while the search was ongoing and forty minutes to an hour after it began." Id. at *4.

2) "Considering this information [of other corroboration in the affidavit] along with the information regarding Doland’s pending federal drug charges, we conclude that the totality of the circumstances still indicates probable cause to search the Martinez-Garcia home . . . Probable cause requires a fair probability, but not a certainty, that a search would yield evidence of crime . . . . The affidavit detailed ample evidence that criminality was afoot at the premises to be searched. The omission of Doland’s pending federal drug charge from the affidavit does not affect the conclusion that there was probable cause for the search of the Martinez-Garcia home. The district court correctly denied his motion for a hearing." Id. at *9 (internal quotations and citation omitted).

Of Note: This disappointing case uses the "totality of the circumstances" to hold that it wasn’t a violation of the Fourth Amendment to search an alien’s home without advising the alien, in Spanish, that the officers had a search warrant. From a practical perspective, why couldn’t the police separate the defendant, seize the house, and delay the search until an interpreter arrived? The Franks analysis is equally unpersuasive – the informant was working off federal drug charges, that fact wasn’t reported in the affidavit, and that doesn’t rise to reversible Franks error?

How to Use: The only glimmer of hope in this opinion are two footnotes that concede that an officer may violate the Fourth Amendment by not serving a warrant at the outset of a search. Id. at *4 & n.2, n.3. If dealing with a delayed search warrant case, seize on these footnotes and try to distinguish Martinez-Garcia.

For Further Reading: It appears that Informant Brian Doland was also involved in another set-up involving Native American artifacts and ultimately, murder-for-hire. For the Outside Magazine article on this bizarre case and on Informant Doland, visit the article here.

Steven Kalar, Senior Litigator N.D. Cal.

Minor role: a barrier removed

The mitigating role adjustments under U.S.S.G. § 3B1.2 provide an important form of mitigation under the advisory guidelines, especially where the offense level is also reduced in drug cases under U.S.S.G. § 2D1.1(a)(3). Unfortunately, the Ninth Circuit in an early case misread the Commentary to discourage mitigating role adjustments, which infected a dozen published opinions. The Ninth Circuit recently amended an opinion by interlineating the incorrect precedent, which has also been superseded by intervening case law and guideline amendments. We need to change the culture on mitigating role to ensure that downward adjustments are viewed as an encouraged ground for imposing a reduced sentence.

Sometimes legal archaeology turns up the point where bad law began and, from there, infected a wide range of precedent. In 1989, in the Gillock case, the Ninth Circuit conflated a Commentary statement that applied to the four-level reduction for minimal role and applied it to minor role. The Commentary stated that minimal role was "to be used infrequently"; no such limitation was included in the Commentary on minor role. Nonetheless, from Gillock, the minimal role statement morphed into a rule that mitigating role adjustments -- minor and minimal -- were "to be used infrequently and only in exceptional circumstances."

The Ninth Circuit applied this error in over 70 published and unpublished cases. In 1999, the Ninth Circuit Federal Public and Community Defenders filed an amicus brief in a case that adopted the erroneous language, requesting that the problem be corrected (available here). In response, the court deleted the reference to the bad standard without comment (here).

In the intervening years, the Gillock virus appeared to be suppressed. In the Rojas-Millan case, the Ninth Circuit expounded at length on the mitigating role adjustment and, in a footnote, clearly cabined the limiting commentary to minimal role. Amendments to the mitigating role guideline also placed minor and minimal role in separate notes, with the limitation applying only to minimal role.

Then came footnote 1 in Wilson, with the same old language limiting mitigating role. On the petition for rehearing by CJA panel attorney Jane Ellis, the court amended the opinion last week in an interesting way: the court set out the incorrect language then literally crossed it out. The amended opinion can now be used to counter any effort to revive the Gillock virus.

And while we’re on the subject, isn’t the "to be used infrequently" language on minimal role unlawful? Frequency depends on how often minimal participants are prosecuted, which is an Executive, not Judicial, function. The Commentary seems to violate separation of powers by skewing sentencing based on a hypothetical quota. It also creates an area of unwarranted disparity if defendants who qualify for the role reduction are denied because a judge is worried about the frequency with which the reduction is granted rather than the objective facts in the individual case. And doesn’t the "infrequently" language conflict with the rule of parsimony that the court should impose the least time necessary to accomplish the goals of sentencing? Application Note 4 looks ripe for a challenge that layers constitutional arguments and Stinson-based claims that the "infrequently" Commentary is inconsistent with governing statutory and guideline provisions.

Booker: First Ninth Decision, Ameline

In a very good decision, Judge Paez revisits an earlier opinion and uses it as a vehicle for the first Ninth Circuit Booker discussion in Ameline (available here). Here are my quick notes on the case, see also Professor Berman's thoughtful summary at his web page (which includes a link to the opinion). This is an important case for the defense, and should be used immediately for post-Booker sentencings.

Ameline Highlights:

1. Almost every case will survive plain error review on appeal. United States v. Ameline, No. 02-30326, 17 (Feb. 9, 2005) ("Accordingly, it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime. This is not such a case.")

2. A district court must engage in a guideline analysis, but that is only one part of the Section 3553(a) inquiry. Id. at 18. Previously impermissible departures now can be considered. Id. ("Thus, under the post-Booker discretionary sentencing regime, the advisory guideline range is only one of many factors that a sentencing judge must consider in determining an appropriate individualized sentence. For instance, the Sentencing Guidelines' limitations on the factors a court may consider in sentencing -- e.g., the impermissible grounds for departure set forth in Section 5K2.0(d) -- no longer constrain the court's discretion in fashioning a sentence within the statutory range."

3. The court must consider the 3553(a) factors, such as "the nature and circumstances of the offense and the history and characteristics of the defendant." Id. at 18-19 ("In addition, the court must consider the relevant Sentencing Commission policy statements and the need to avoid unwarranted sentencing disparities and provide restitution to victims.")

4. To permit adequate appellate review, the court must provide an explanation for its sentencing decisions. Id. at 19.

5. The baseline rules for PSR's and guideline calculations, in Federal Rule of Procedure 32, remain in place. Id. at 20.

6. The government bears the burden of proof for any fact that the sentencing court would find necessary to determine the base offense level. Id. at 20.

7. There is a possibility that the higher due process protections of a higher standard of proof may apply -- left unanswered here. Id. at 20 & n.7.

8. Facts in the PSR cannot be treated as presumptively accurate. Id. at 22.

In general, Ameline is everything the defense could hope for in the Ninth. It is a great case to throw at Probation, when they refuse to include 3553(a) factors in the PSR. It will also be a great case for judges who are stuck in the guideline rut. Finally, use Ameline with the USAO to argue that it should bargain outside of the guideline range.

Steven Kalar, Senior Litigator ND Cal

Case o' The Week: Antelope, SABER, and Fifth Amendment

In the last several years, Probation and the DOJ have pushed the SABER program for all federal sex offenders. This program requires mandatory confession of all prior sex crimes as part of supervision -- without any immunity from further prosecution. See United States v. Antelope, __ F.3d __, 2005 WL 170738 (9th Cir. Jan 27, 2005), available here. The Ninth Circuit in Antelope finds that this procedure violates the Fifth Amendment. A remarkable win after four appeals by the Federal Defender of Montana.

Players: A remarkable and hard-fought victory by Defender Anthony Gallagher, AFPDs John Rhodes and David Avery, of the Montana FPD.

Facts: Antelope was convicted of possessing child porn, and received an initial sentence of five years probation. Antelope, 2005 WL 170738, *1 (9th Cir. Jan 27, 2005). As part of his supervision, he was ordered to participate in the "Sexual Abuse Behavior Evaluation and Recovery program" ("SABER"). Id. This program required mandatory, periodic, and random polygraph examinations, where Antelope would be required to disclose his full sexual history. Id. at *2. He repeatedly refused to do so, citing fear of self-incrimination. Id. The SABER counselor confirmed that any confessed prior sexual incidents with children would be referred for prosecution. Id. at *5. Indeed, Montana state law required the counselor to do so. Id. Antelope’s probation was repeatedly revoked, he received custodial sentences, and he appealed four times. Id. at *2.

Issue(s): "The case he now brings requires us to decide whether the government’s actions [requiring full participation in the SABER program, or revocation and incarceration] violated his Fifth Amendment right against compelled self-incrimination." Id. at *1.

Held: "Because the Constitution does not countenance the sort of government coercion imposed on Antelope, and because his claim is ripe for adjudication, we reverse the judgement of the district court." Id. at *1. On the basis of McKune [v. Lile, 536 U.S. 24 (2002) (O’Connor, J., concurring in 4-1-4 decision)], we hold that Antelope’s privilege against self-incrimination was violated because Antelope was sentenced to a longer prison term for refusing to comply with SABER’s disclosure requirements." Id. at *8. "Because the government and district court have consistently refused to recognize that the required answers may not be used in a criminal proceeding against Antelope, . . . we hold that the revocation of his probation and supervised release violated his Fifth Amendment right against self-incrimination." Id. at *10.

Of Note: The SABER program, and others like it, are part of a huge national push by Probation and the DOJ for mandatory disclosure of sexual history during probation, for child porn and molestation cases. It is remarkable that the program – which required the admission of prior sex crimes without any immunity – has survived constitutional challenge this long, but the program illustrates how these offenses have become the witch hunt of this decade. The Montana FPD office deserves the thanks of the defense bar for four appeals challenging this procedure. It also bears emphasis that this panel – Brunetti, McKeown, and Gould – is a far cry from a dream Ninth Circuit team (like Pregerson, Ferguson, and Reinhardt). Hopefully, the moderate-right bend of this panel will fend off an en banc call.

How to Use: Antelope is of obvious use for any federal sex offense, as a SABER program has become mandatory for almost any negotiated settlement. One worries, however, that Probation and DOJ will cook up some alternative. If defense counsel encounter forced alternative SABER requirements for sex crime cases, contact Steve Kalar and we will post them on the Ninth Circuit blog and solicit arguments. Antelope is also an important case for its thorough and thoughtful discussion of Fifth Amendment jurisprudence, ripeness, incrimination, and compulsion. It will a lead Ninth Circuit case for Fifth Amendment issues such as Kastigar waivers and compelled handwriting exemplars.

For Further Reading: Although this web site is generally has a law-enforcement angle, there is actually a fairly thoughtful blog on Antelope that seems to have postings from sympathetic sex offense counselors. See sex criminals blog here.

David Fermino, AFPD, Steven Kalar, Senior Litigator, ND Cal.

Leocal & Martinez: an end to BOP misinterpretation of the good time statute?

Inmates in federal prisons around the country have been objecting to the BOP’s claim that the federal good time statute only provides 47 days, not 54 days, of credit against every year of the sentence. Despite statutory language providing up to 54 days of good time credit "beyond time served" at the end of each year of the "term of imprisonment," the BOP only provides maximum good time of 47 credits per year of the sentence. Two district courts have found that the statue unambiguously requires 54 days, but several Circuits – including the Ninth – have found the statute ambiguous, then deferred to the agency’s interpretation that good time only counts against time actually served, not the sentence imposed. This Term’s Supreme Court opinions in Leocal and Martinez demonstrate that the rule of lenity, not Chevron deference, controls the interpretation of this penal statute.

For several years, the National Association of Criminal Defense Lawyers, the Families Against Mandatory Minimums, and the National Association of Federal Defenders have been struggling to provide prisoners the full measure of good time provided by Congress in 18 U.S.C. § 3624(b) (as reflected in the Champion article here). Two terrific district court opinions (White and Williams) follow the simple rules of statutory construction to find that "term of imprisonment" means the sentence imposed, thereby requiring 54 days of good time credit per year. Several Circuits, on the other hand, have generally followed the Ninth Circuit’s lead in Pacheco-Camacho by finding "term of imprisonment" to be ambiguous, then according the BOP Chevron deference (including the Seventh Circuit in reversing White).

Now those Circuit cases need a second look. Recent Supreme Court cases establish that the canons of statutory construction -- like the rule of lenity -- apply before Chevron deference. Because these recent Supreme Court cases undermine the "mode of analysis" of earlier precedent, Pacheco-Camacho and the cases following it must be re-examined under the governing Supreme Court methodology (Miller).

This is how the rules of construction are supposed to operate. In I.N.S. v. St. Cyr, the Court rejected the retroactive construction of a removal statute, because, citing Chevron’s first prong, deference is only appropriate to statutes that, "applying the normal ‘tools of statutory construction,’ are ambiguous." The brain teaser in footnote 45 is the key: "Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, . . . there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve." The rule of lenity is also a "tool of statutory construction," rendering penal statutes unambiguous for Chevron purposes.

This Term, the Court followed the St.Cyr reasoning in Leocal v. Ashcroft and Martinez v. Clark. In Leocal, the immigration agency found an alien removable for having committed an aggravated felony because it interpreted drunk driving to be a "crime of violence." In rejecting the agency interpretation, the Court explicitly addressed the rule of lenity. In footnote 8, the Court, citing Thompson/Center, found that any ambiguity would have to be construed in the alien’s favor under the rule of lenity, because the statute had only one meaning in criminal and noncriminal contexts.

In Martinez, the Court again rejected the immigration agency’s construction of a statute, this time the post-removal detention statute, again referring to Thompson/Center. The Court emphasized that the doctrine of constitutional avoidance is a canon of statutory construction. Since the doctrine only applies to ambiguous language, this is another example of how "tools of statutory construction" -- including the rule of lenity -- are applied before the first prong of Chevron’s determination of ambiguity. By applying lenity first in construing the good time statute, the Court avoids the separation of powers issues surrounding the Executive’s usurpation of the Legislative function of setting punishment.

These Supreme Court cases demonstrate that, contrary to the Circuits that have been deferring to the agency based on the good time statute’s supposed ambiguity, the rule of lenity trumps Chevron deference. As Justice Scalia wrote in the concurring opinion in Crandon, the Executive’s construction of a penal statute "is not even deserving of persuasive effect" because it "would turn the normal construction of criminal statutes upside down, replacing the doctrine of lenity with the doctrine of severity." Pacheco-Camacho’s reliance on Sweet Home, a case that did not involve an ambiguous penal statute, is undone: the footnote 18 reference in Sweet Home to Thompson/Center has been adopted by Leocal and Martinez.

These cases mean district courts around the country should be free to decide prisoner petitions unencumbered by the cases that, as the Williams judge stated, give only a "cursory nod" to statutory construction. Lawyers litigating these issues have support from the Oregon FPD and FAMM, through its counsel, Mary Price. The NACDL Website has model pleadings and briefs including the pending Ninth Circuit case of Mujahid (opening and reply briefs), AFPD David Lewis’s development of the Chevron/lenity analysis in the Second Circuit, and AFPD Sarah Gannett’s amicus brief defending the Williams decision in the Fourth Circuit.

Sarah updates what is at stake: for the present prison population, seven days per year would save 27,000 years of incarceration and $620 million of incarceration costs never authorized by Congress. If you are litigating this issue, or want to provide prisoner representation, please contact Lynn Deffebach at the Oregon FPD (lynn_deffebach@fd.gov) or Mary Price at FAMM (mprice@famm.org).

Booker: Reasonable doubt for supervised release

San Diego AFPD Steve Hubachek has a creative and, ultimately, convincing argument that Apprendi requires a reasonable doubt finding for supervised violations. Here is the summary of his argument from his appellate brief (available by e-mailing Hubachek or Steve Kalar).

--oOo--

The Supreme Court's decision in Booker contains two primary holdings: first, that the Apprendi line of cases applies to the Sentencing Reform Act ("SRA"), and second, that the remedy for the constitutional defects in the process by which sentences are imposed can be cured by severing two provisions from the SRA, 18 U.S.C. § 3553(b)(1), which made the Sentencing Guidelines mandatory, and 18 U.S.C. § 3742(e), which set forth standards of review on appeals from sentencing decisions under the mandatory regime. In the latter holding, the so-called remedial majority rejected the notion that the constitutional defects in the SRA could be cured by recasting the Guideline system as one in which defendants enjoyed the rights guaranteed by the Apprendi line of cases -- i.e., presentation to the grand jury, proof beyond a reasonable doubt and jury trial -- as contrary to Congressional intent. The remedial majority was not required to strike down the SRA, however, because it contained an alternative sentencing regime set forth in 18 U.S.C. § 3553(a). The remedial majority held that sentencing pursuant to that Congressionally created scheme was both consistent with Congressional intent and the proscription of judicial legislation.

Neither of the two cases addressed in the Booker opinion involved issues concerning the imposition or revocation of supervised release. Even so, Booker is dispositive of Mr. Huerta's appeal, and requires that his sentence be reversed. That is so for two reasons. First, the Apprendi line of cases is equally applicable to the supervised release regime because imprisonment for a supervised release violation necessarily requires a finding of a fact not considered by the trial jury: the alleged violation. Second, the remedial majority's holding that super-imposition of Apprendi protections over the SRA is not consistent with Congressional intent is even more compelling in the context of supervised release where the statutory scheme explicitly eschews Apprendi protections such as presentation to a grand jury, proof beyond a reasonable doubt, and right to a jury trial . See 18 U.S.C. § 3583(e)(3) ("the court" makes findings "by a preponderance of the evidence"); Fed. R. Crim. P. 32.1(b)(1) (right to a preliminary hearing, not presentation to a grand jury), (b)(2) (revocation hearing before "the court").

Under the remedial majority's reasoning, section 3583(e)(3) and Rule 32.1(b) must be stricken. And, unlike the situation posed by the alternative processes created by sections 3553(a) and (b), there is no alternative legislation in place to permit revocation hearings to go forward. Because United States v. Jackson, 390 U.S. 570 (1968), prohibits this Court from implementing a new system of its own, section 3583(e)(3) cannot be constitutionally implemented, and must be struck down.

Neither Booker's broad statement that supervised release is constitutional nor the specific issues raised in Mr. Huerta Pimentel's Opening Brief preclude this Court from considering the issues raised in the instant brief. Supervised release revocation was not at issue in Booker, and therefore any dicta on that issue is not binding. See Webster v. Fall, 266 U.S. 507, 512 (1925). Nor is there any prejudice to the government in raising these issues now, because they are purely issues of law. See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248 n.4 (9th Cir. 2003).

AFPD Steve Hubachek, San Diego Community Defender

DOJ Sentencing Memo to All Federal Prosecutors

As reported on Professor Berman's blog, on January 28, 2005, Deputy Attorney General James B. Comey issued a memorandum to all federal prosecutors (available here) describing the Department's policies and procedures on sentencing after Booker. It requires prosecutors to: (1) continue charging and pursuing the most serious readily provable offenses, which means presenting to the court all readily provable facts relevant to sentencing (i.e., real offense conduct); (2) "actively" seek sentences within the range established by the Sentencing Guidelines "in all but extraordinary cases;" (3) oppose in the district court (to preserve the Department's ability to appeal "unreasonable" sentences) any sentence below "what the United States believes is the appropriate Sentencing Guidelines range (except uncontested departures pursuant to the Guidelines, with supervisory approval); and (4) report to the Department sentences outside the "appropriate Sentencing Guidelines range" and cases in which the district court failed to calculate a Guideline range before imposing an unreasonable sentence (they're making a list and checking it twice!) (there's a form attached to the memo for this very purpose).

Booker: Ex Post Facto Argument with Newman

As litigation heats up after Booker, we've moved from the theoretical to the nitty-gritty of actual practice. Below is an excerpt of an excellent brief by Senior Deputy FPD Carl Gunn from the CD Cal and Elizabeth Barros from the SD Cal. In it, Carl and Elizabeth distinguish an odd and unconvincing Ninth Circuit hurdle to the ex post facto argument on Booker: United States v. Newman, 203 F.3d 700 (9th Cir.), cert. denied, 531 U.S. 866 (2000). (Newman is available here).

--oOo--

The Ex Post Facto Clause absolutely bars the retroactive application of a criminal law to any criminal offender whom the law disadvantages. Weaver v. Graham, 450 U.S. 24, 29 (1981). It is one of the most fundamental principles in our Constitution. See U.S. Const., art. I, § 9, cl. 3; U.S. Const., art. I, § 10, cl. 1. See generally Weaver, 450 U.S. at 28-29 & n.8 ("[s]o much importance did the [c]onvention attach to [the ex post facto prohibition], that it is found twice in the Constitution" (quoting Kring v. Missouri, 107 U.S. 221, 227 (1883))).

The Ex Post Facto Clause applies by its terms only to changes in the law resulting from legislative or executive action, however. Protection against retroactive application of changes in judicial interpretation of criminal statutes is provided by the Due Process Clause. As the Supreme Court explained in Bouie v. City of Columbia, 378 U.S. 347 (1964):

[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one "that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action," or "that aggravates a crime or makes it greater than it was, when committed." If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. The fundamental principle that "the required criminal law must have existed when the conduct in issue occurred" must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue," it must not be given retroactive effect.

Id. at 353-54 (citations and footnote omitted) (emphasis in original). See also Marks v. United States, 430 U.S. 188, 192 (1977) (applying Bouie to Due Process Clause of Fifth Amendment).

The Ninth Circuit did suggest in United States v. Newman, 203 F.3d 700 (9th Cir.), cert. denied, 531 U.S. 866 (2000), that Bouie is implicated only in cases of after-the-fact expansion of criminal liability, not after-the-fact increases in the degree of punishment. See Newman, 203 F.3d at 702. But Newman is not controlling and should not be followed here for at least three reasons.

First, the suggestion in Newman is dictum because the Court gave an alternative ground for its holding. Specifically, it pointed out that "even if Bouie applies here, no due process violation occurred because the decision in [Reno v. Koray. 515 U.S. 50 (1995)] was reasonably foreseeable given the circuit split on the meaning of section 3585(b)." Newman, 203 F. 3d at 703. This is consistent with the caveat that Bouie does not bar retroactive application of a judicial decision which is foreseeable. See United States v. Qualls, 172 F.3d 1136, 1138 n.1 (9th Cir. 1999). One of the most obvious examples of a situation in which a judicial decision is foreseeable is when there is a split in the circuits. See id.

Second, Newman and the cases on which it relied on -- United States v. Ruiz, 935 F.2d 1033 (9th Cir. 1991) and United States v. Ricardo, 78 F.3d 1411 (9th Cir. 1996) -- are distinguishable. Ruiz is distinguishable because the defendant there was complaining that he relied on the law in effect at the time he entered his plea, see Ruiz, 935 F.2d at 1035, and he had been given an opportunity to withdraw his plea when he raised his complaint, see id. at 1038 (Reinhardt, J., concurring in judgment); see also id. at 1035 (majority opinion).5 Ricardo is distinguishable because the decision being applied retroactively there -- Custis v. United States, 511 U.S. 485 (1994), which held that a defendant cannot challenge the constitutional validity of a prior conviction directly in a federal sentencing proceeding, see id. at 497 -- dealt not with whether a defendant could challenge prior convictions, but where he must challenge it, i.e., in the original court of conviction rather than the federal sentencing court. See United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999) ("a defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction"); see also United States v. Guthrie, 931 F.2d 564, 571-72 (9th Cir. 1991). Finally, Newman itself is distinguishable because it dealt with a statute governing credit against the sentence, not the sentence itself. See Newman, 203 F.3d at 701.

Third, virtually every other circuit to consider the question has rejected the distinction suggested in Newman and held that Bouie applies to sentencing statutes just as it does to substantive statutes. See Johnson v. Kindt, 158 F.3d 1060, 1063 (10th Cir. 1998), cert. denied, 525 U.S. 1075 (1999); Davis v. Nebraska, 958 F.2d 831, 833-34 (8 th Cir. 1992); Helton v. Fauver, 930 F.2d 1040, 1045 (3rd Cir. 1991); Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989), cert. denied, 494 U.S. 1058 (1990); Rubino v. Lynaugh, 845 F.2d 1266, 1271-73 (5th Cir. 1988); see also Metheny v. Hammonds, 216 F.3d 1307, 1312 n.13 (11th Cir. 2000) (assuming without deciding that Bouie applies to after-the-fact increases in punishment), cert. denied, 531 U.S. 1196 (2001). Newman should not be read overly strongly as a controlling holding when so reading it would create a split in the circuits. Cf. Circuit Rule 35-1 ("[w]hen the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for suggesting a rehearing en banc").

Indeed, the only Ninth Circuit case to truly apply Newman -- Holgerson v. Knowles, 309 F.3d 1200 (9th Cir. 2002), cert. denied, 538 U.S. 1005 (2003) -- suggested Newman simply raises doubt about the application of Bouie to judicial decisions about sentencing statutes. The issue in Holgerson was whether a California state court decision that the defendant claimed expanded the categories of convictions that could be considered under the states’s "three strikes" law could be applied retroactively. See Holgerson, 309 F.3d at 1201-02. The Ninth Circuit cited both Bouie and Newman, but limited its consideration of Newman as follows:

We need not decide whether Bouie applies to the California Supreme Court’s decision . . . . We rely on Newman merely for our conclusion that the argument Holgerson posits (that due process bars judicial after-the-fact increases in punishment as well as after-the-fact increases in the scope of criminal liability) has not been clearly established by the Supreme Court.

Holgerson, 309 F.3d at 1203.6

Given the grounding of Bouie in an analogy to the Ex Post Facto Clause and the limitations of Newman, the better view -- and the view which should be taken here -- is that taken by the other circuits which have enunciated square holdings on the issue. Bouie applies to retroactive application of judicial decisions increasing punishment just like the Ex Post Facto Clause applies to retroactive application of statutes increasing punishment, see Weaver v. Graham, 450 U.S. at 30; see also Bouie, 378 U.S. at 353 (ex post facto law defined to include law "that aggravates a crime, or makes it greater than it was, when committed" (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648)).

The test that Bouie established for when retroactivity of a judicial decision is precluded is satisfied here, moreover. The basic test is one of foreseeability. See Marks v. United States, 430 U.S. at 192; United States v. Qualls, 172 F.3d at 1138 n.1. And the decision in Booker cannot be fairly characterized as foreseeable at the time Mr. Padilla committed his offense, which was January 30, 2001. While Apprendi v. New Jersey, 530 U.S. 466 (2000) had been decided, Blakely v. Washington, 124 S. Ct. 2531 (2004) had not been, and the circuits were unanimous in holding that Apprendi did not apply to the Guidelines.7 Mr. Padilla had no reason to believe that the Guidelines would be made advisory, and so the Supreme Court’s decision in Booker cannot used to justify a higher sentence.

Carl Gunn, Senior Deputy Federal Public Defender, CD Cal and Elizabeth Barros, AFPD SD Cal

Huerta-Rodriguez: reasonable doubt required

Judge Bataillon in the District of Nebraska has provided an opinion rich in analytic guidance on the meaning of Booker and the process required in post-Booker sentencing. After exploring the constitutional perils of sentencing based on facts only proved by a preponderance, the court, by express reference to the constitutional avoidance doctrine, found it necessary to require compliance with the reasonable doubt standard: "Whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it can never be 'reasonable' to base any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt."

Mr. Huerta-Rodriguez, represented by AFPD Jessica Milburn, plead staight up to an illegal reentry indictment, hoping Booker would invalidate the harsh guidelines that apply to aliens with prior crimes of violence. Before reaching any conclusion about the sentence in this defendant's case, Judge Bataillon (here) engaged in a careful review of Booker's effect on sentencing, providing a series of legal nuggets on the way to arriving at his requirement that facts be established beyond a reasonable doubt:

• after Booker, the court is not bound by the guidelines but must "consult" and "take them into account at sentencing;
• the measure of a "reasonable" sentence is neither the guideline range nor the statutory maximum;
• judicial discretion is more constrained post Booker than it was before the guidelines went into effect;
• Booker does not alter the due process constraint that requires a finding "beyond a reasonable doubt" if that factual finding would increase the punishment above the lawful sentence that could have been imposed absent that fact;
• the upper limit of a lawful sentence is not the statutory maximum but the highest point within that range that is "reasonable";
• to sentence in excess of the upper limit requires the procedural protections of the Fifth and Sixth Amendments;
• although jury rights can be waived, the defendant cannot waive the societal interest in the reasonable doubt standard, the importance of which is reflected in retroactivity doctrine (jury rights are not retroactive under Schriro while reasonable doubt is retroactive under Ivan V. and Hankerson);
• whether a sentence is "reasonable" depends on a wide array of section 3553(a) factors, including the manner in which the Sentencing Commission arrived at the guideline and charging practices;
• given the uncertainty of when a fact constitutes an element or a sentencing factor, "[j]ust as a court should construe a statute to avoid constitutional infirmity if possible, ...prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional;
• the court will continue to require that facts "that enhance a sentence are properly pled in an indictment or information, and either admitted, or submitted to a jury (or to the court if the right to a trial by jury is waived) for determination by proof beyond a reasonable doubt."

Proceeding to Mr. Huerta-Rodriguez's case, the court balanced factors including the Probation Office's recommendation of a 16-level increase for a prior violent felony and the parties' agreement at Criminal History Category V. The bottom of the range using that calculation would have been 70 months. Providing careful individualized sentencing based on the section 3553(a) factors, including the rule of parsimony, the court imposed a 37 month sentence -- halfway between the top of the unenhanced guideline range and the bottom of the usual fast-track offer.

This case complements nicely the arguments federal defenders are making on the reasonable doubt standard here. Another bolstering argument can be fashioned based on the Supreme Court case of Glover v. United States. In Glover, the defendant asserted in a section 2255 motion that he received ineffective assistance of counsel regarding a two-level increase in his guideline range. In rejecting the lower court's finding of insufficient prejudice, the unanimous Court stated through Justice Kennedy: "Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggsts that any amount of actual jail time has Sixth Amendment significance." To the same extent, an advisory guideline increase with inadequate proof has constitutional significance.

As Professor Berman has stated here, the Huerta-Rodriguez opinion defies summary and is a "must-read" for all who are sorting out the post-Booker sentencing principles.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.

Booker: reasonable doubt update

An earlier posting, available here, outlined an argument that the reasonable doubt standard survives Booker. A letter brief elaborating this argument, available here, is circulating among federal defenders. And now that brief already needs to be supplemented with the subject of the next posting, Judge Bataillon's opinion yesterday in Huerta-Rodriguez in which, applying judicial discretion by express analogy to the constitutional avoidance doctrine, the court stated: "Whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it can never be 'reasonable' to base any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt."

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.

New Study on Racial Disparity in Sentencing

According to the folks at CrimProf Blog, there's a new study from the Sentencing Project that canvasses the academic literature on racial sentencing disparity.

Now that district courts must consider all the factors listed in § 3553(a), including "the history and characteristics of the defendant," and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," as well as the need for the sentence to provide "just punishment for the offense," the Sentencing Project just published a timely review of the literature on racial disparity in sentencing (available at: http://www.sentencingproject.org/pdfs/disparity.pdf), which could provide powerful statistical support for a mitigated sentence in appopriate cases. Among its findings:
· Young, black and Latino males (especially if unemployed) are subject to particularly harsh sentencing compared to other offender populations;
· Black and Latino defendants are disadvantaged compared to whites with regard to legal-process related factors such as the "trial penalty," sentence reductions for substantial assistance, criminal history, pretrial detention, and type of attorney;
· Black defendants convicted of harming white victims suffer harsher penalties than blacks who commit crimes against other blacks or white defendants who harm whites;
· Black and Latino defendants tend to be sentenced more severely than comparably situated white defendants for less serious crimes, especially drug and property crimes.
Studies that examine death-penalty cases have generally found that:
· In the vast majority of cases, if the murder victim is white, the defendant is more likely to receive a death sentence;
· In a few jurisdictions, notably the federal system, minority defendants (especially blacks) are more likely to receive a death sentence.