Monday, January 31, 2005

Booker: Outline of post-Booker cases 1.30.05

AFPD Fran Pratt has prepared a very useful outline of Booker decisions that have come out as of January 30, 2005.


As of January 30, 2005*
This compilation of selected decisions interpreting and applying United States v. Booker, 125
S. Ct. 738, 2005 WL 50108, 2005 U.S. LEXIS 628 (U.S. Jan. 12, 2005), is based primarily on searches in Westlaw (database FCJ-CS) and Lexis (database for all federal cases) using the following query:

booker and date(aft 01/11/2004). Decisions that, in the compiler’s judgment, are significant because they contain particularly lengthy, thoughtful, or otherwise useful discussion are marked by an asterisk (*).

Westlaw and Lexis citations have been provided where available. Most decisions can also be
retrieved as slip opinions from the issuing court’s web site. The cases are arranged by stage of litigation and chronologically within each stage. Cases from the Eastern District of Virginia and the Fourth Circuit have their names and citations in bold.


United States v. Dose, 2005 WL 106493, U.S. Dist. LEXIS 526 (N.D. Iowa, Jan. 12, 2005)
(Zoss, M.J.) (recommending in light of Booker that defendants’ motion to strike “notice of additional relevant facts” from superseding indictment as surplusage be granted)

United States v. Anderson, 2005 U.S. Dist. LEXIS 940 (S.D.N.Y. Jan. 24, 2005) (Keenan, J.)
(nothing in Booker requires dismissal of indictment)

United States v. Dottery, ___ F. Supp. 2d ____, 2005 WL 174634, U.S. Dist. LEXIS 1071
(E.D. Mich. Jan. 24, 2005) (Lawson, J.) (because Booker has rendered addition of sentencing factors to indictment unnecessary, concluding that “[s]ince the superseding indictment added only the sentencing factors and nothing else, the Court believes that all prejudice, real and imagined, will be removed by dismissing the superseding indictment and proceeding to trial on the original indictment”)


United States v. Kuhn, ___ F. Supp. 2d ____, 2005 WL 66758, U.S. Dist. LEXIS 373 (E.D.
Mich. Jan. 12, 2005) (Lawson, J.) (upon remand after government won appeal regarding downward departure; after considering Guidelines as advisory and according them significant weight, granting downward departure from range of 21-27 months to 6 months in community confinement, the same sentence previously imposed)

* United States v. Wilson, ___ F. Supp. 2d ____, 2005 WL 78552, 2005 U.S. Dist. LEXIS 744
(D. Utah, Jan. 13, 2005) (Cassell, J.) (in a lengthy opinion in which court considered “just how ‘advisory’ the Guidelines are,” concluding that “that in exercising its discretion in imposing sentences, the court will give heavy weight to the recommended Guidelines sentence in determining what sentence is appropriate. The court, in the exercise of its discretion, will only deviate from those Guidelines in unusual cases for clearly identified and persuasive reasons. This is the only course that implements the congressionally-mandated purposes behind imposing criminal sentences.”)

United States v. Beal (In re Beal), ___ F. Supp. 2d ____, 2005 WL 112402, 2005 U.S. Dist.
LEXIS 750 (D. Me. Jan. 19, 2005) (Woodcock, J.) (while acknowledging that Guidelines are now
advisory, noting that court “must consult those guidelines and take them into account;” denying defendant’s motion for downward departure based on U.S.S.G. § 5K2.12, because defendant did not carry burden of establishing that she committed embezzled money from employer as a result of coercion and duress)

United States v. Davis, ___ F. Supp. 2d ____, 2005 WL 91257, 2005 U.S. Dist. LEXIS 609
(D. Me. Jan. 19, 2005) (Woodcock, J.) (while acknowledging that Guidelines are now advisory, noting that court “must consult those guidelines and take them into account; ruling that Florida conviction for robbery by sudden snatching is crime of violence for purposes of U.S.S.G. § 2K2.1(a) and § 4B1.2)

* United States v. Ranum, ___ F. Supp. 2d _____, 2005 WL 161223 (E.D. Wis. Jan. 19, 2005)
(Adelman, J.) (in explaining why court was imposing sentence lower than that recommended by Guidelines, stating that while court agreed that it must seriously consider Guidelines, “Booker is not an invitation to do business as usual;” courts need not follow old departure methodology in imposing sentence outside Guideline range; disagreeing with Judge Cassell in Wilson, supra)

United States v. Jones, ___ F. Supp. 2d ____, 2005 WL 121730, 2005 U.S. Dist. LEXIS 833
(D. Me. Jan. 21, 2005) (Hornby, J.) (in 18 U.S.C. § 922(g)(4) case (possession of firearm by person previously committed involuntarily to mental health institution), while concluding that he could not grant departure sought by defendant, government, and probation to take defendant from Zone D to Zone C, court concluded that it could achieve same result after Booker in considering Guidelines as advisory and as one factor under 18 U.S.C. § 3553(a))

* United States v. Barkley, not currently on Westlaw, Lexis, or the district court’s website, but
is abailable here. (N.D. Okla. Jan. 24, 2005) (Holmes, J.) (No. 04 Cr. 119(H)) (stating that the Guidelines would be “faithfully follow[ed]” in all cases, “with only such modifications as the Court finds are necessary to satisfy the requirements of the Sixth Amendment articulated in Blakely”; that is, within the context of the advisory guidelines, the court will apply the Sixth Amendment)

* United States v. Myers, ___ F. Supp. 2d. ____, 2005 WL 165314 (S.D. Iowa Jan. 26, 2005)
(Pratt, J.) (in sawed-off shotgun case in which Guidelines range was 20-30 months, sentencing defendant to 3 months probation; reviewing Booker, Wilson (supra), and Ranum (supra); finding Ranum persuasive and adopting Judge Adelman’s view because “[t]o treat the Guidelines as presumptive is to concede the converse, i.e., that any sentence imposed outside the Guideline range would be presumptively unreasonable in the absence of clearly identified factors . . .[and] making the Guidelines, in effect, still mandatory;” viewing Booker “as an invitation, not to unmoored decision making, but to the type of careful analysis of the evidence that should be considered when depriving a person of his or her liberty”)

* United States v. West, 2005 WL 180930, 2005 U.S. Dist. LEXIS 1123 (S.D.N.Y. Jan. 27,
2005) (Sweet, J.) (in wire fraud case, where stipulated Guideline range was 57-71 months, sentencing defendant to 60 months, the statutory maximum; following Ranum (supra), in that Guidelines are only one factor to consider; notably, stating that “[n]othing in Booker appears to suggest that such fact-finding, as limited by the principles of Apprendi and its progeny, is inappropriate. Accordingly, this Court will sentence West based upon the facts admitted in connection with his plea and upon those facts found by the Court in the context of analysis under subsection 3553(a), as limited by Apprendi and Booker”)

* United States v. Revock, 2005 U.S. Dist. LEXIS 1151 (D. Me. Jan. 28, 2005) (Hornby, J.)
(Criminal No. 04-105-P-H) (finding that after Booker, enhancements need be proven only by
preponderance of evidence and that jury verdict or defendant’s stipulation is not required; where codefendant did not receive enhancement because he was sentenced after Blakely but before Booker and defendant was otherwise identically situated to co-defendant, court would not apply enhancement even under preponderance standard, to avoid unwarranted disparity)


United States v. Contreras, 2005 U.S. Dist. LEXIS 931 (S.D.N.Y. Jan. 21, 2005) (Casey, J.)
(in ruling on motion made pursuant to 18 U.S.C. § 3582 regarding applicability of U.S.S.G. amend. 640, noting that because defendant did not qualify for safety valve in first instance, court need not address “more complicated issue” of effect of Booker on defendant’s sentence)
United States v. Ziskind, 2005 U.S. Dist. LEXIS 1047 (D. Mass. Jan. 25, 2005) (Woodlock, J.)
(denying motion for stay of execution of sentence because, “the sentence imposed [by the court] under the mandatory guidelines scheme would in all likelihood be the sentence [it] would impose under an advisory guidelines sentencing scheme”)


D.C. Circuit

United States v. Miller, ___ F.3d ____, 2005 WL 88942, 2005 U.S. App. LEXIS 862 (D.C.
Cir. Jan. 18, 2005) (in opinion written before Booker was decided, finding that even assuming that Blakely applied to Guidelines, district court could consider nature and timing of prior convictions)

Fourth Circuit

* 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)

Sixth Circuit

United States v. Davis, unpublished, 2005 WL 130154, 2005 U.S. App. LEXIS 1204 (6th Cir.
Jan. 21, 2005) (No. 03-4114) (in fraud case where sentencing pre-dated Blakely, such that defendant did not object to loss calculation on basis of Sixth Amendment but did object on other grounds, finding that Blakely issue was sufficiently preserved; remanding case for resentencing in light of Booker)

Seventh Circuit

United States v. Brown, unpublished, 2005 WL 130176, U.S. App. LEXIS 1034 (7th Cir.
Jan. 14, 2005) (No. 04-2870) (in Anders case, considering whether defendant could have challenged sentence under Blakely on ground that prior convictions were used to increase base offense level; noting that “Brown did not object to the characterization of his previous convictions . . . as crimes of violence or controlled substance offenses, and even after Blakely, the existence of a prior conviction need not be proven beyond a reasonable doubt;” concluding that “any argument that Brown’s sentence is unconstitutional would be frivolous”)

Eighth Circuit

United States v. Coffey, ___ F.3d ____, 2005 WL 119843, 2005 U.S. App. LEXIS 1090 (8th
Cir. Jan. 21, 2005) (where defendant had asserted before sentencing that there was insufficient evidence on which to calculate any drug quantity and apparently did not raise Blakely challenge until appeal, court of appeals simply remanded case, noting that “[w]e express no opinion on whether a sentence handed down under the mandatory Guidelines system is plainly erroneous, nor do we consider the outer limits of precisely what will preserve the issue”)

United States v. Burgess, unpublished, 2005 WL 124523, 2005 U.S. App. LEXIS 1135 (8th
Cir. Jan. 24, 2005) (No. 04-1543) (responding to defendant’s pro se supplemental brief, which raised Blakely claim, and remanding in light of Booker)

United States v. Cole, ___ F.3d ____, 2005 WL 167619, 2005 U.S. App. LEXIS 1320 (8th
Cir. Jan. 27, 2005) (affirming sentence; noting at end of opinion that defendant had not raised any claims that implicate Booker)

United States v. Parsons, ___ F.3d ____, 2005 WL 180495, 2005 U.S. App. LEXIS 1406 (8th
Cir. Jan. 28, 2005) (per curiam) ((1) in case submitted for decision last December, denying motion to file Post-Booker Decisions Outline As of Jan. 30, 2005 supplemental briefing in light of Blakely, where defendant claimed he “‘would never had admitted to the amount of loss . . . if he had known that these factors had to be proven beyond a reasonable,’” because defendant was sentenced only on basis of facts he admitted as part of plea; (2) further, developments in
law in Blakely and Booker do not invalidate plea; (3) finally, finding that “there would no merit to an argument that Parsons is entitled to resentencing under advisory Guidelines” where he was sentenced at the low of the range that he had agreed to in his plea agreement)

Ninth Circuit

United States v. Tanner, unpublished, 2005 WL 147590, 2005 U.S. App. LEXIS 1215 (9th Cir.
Jan. 25, 2005) (Nos. 02-10661, 03-10002) (noting that as to sentencing issues raised by both defendant and government (on cross-appeal), “this issue would have been difficult. Now that the Sentencing Guidelines are merely guidelines channeling the reasonable exercise of the district court's discretion, we cannot say, in light of the district judge's careful consideration of both the guidelines and the individual circumstances of this case, that the sentencing decisions were unreasonable”)

United States v. Akpa, unpublished, 2005 WL 159626, 2005 U.S. App. LEXIS 1293 (9th Cir.
Jan. 26, 2005) (No. 04-10146) (where it was unclear from opinion whether defendant had raised Blakely issue in district court but did raise it on appeal, “[w]e remand to the district court for it in the first instance to reexamine Akpa’s sentence in light of” Booker)

Eleventh Circuit

* United States v. Rubbo, ___ F.3d ____, 2005 WL 120507, 2005 U.S. App. LEXIS 1096
(11th Cir. Jan. 21, 2005) (finding that Apprendi / Blakely / Booker claims do not fall outside of scope of waiver of appeal; enforcing waiver and dismissing appeal)

United States v. Reese, ___ F.3d ____, 2005 WL 172024, 2005 U.S. App. LEXIS 1324 (11th
Cir. Jan. 27, 2005) (in case where defendant raised Apprendi challenge in district court and on appeal in briefs submitted prior to Blakely, supplemental briefs were filed in light of Blakely, panel decision issued last September (382 F.3d 1308) but mandate was withheld at request of member of court, now vacating prior opinion and remanding for resentencing consistent with Booker)

United States v. Grant, ___ F.3d ____, 2005 WL 172157, 2005 U.S. App. LEXIS 1337 (11th
Cir. Jan. 27, 2005) (affirming sentence; noting at beginning of opinion that defendant had not contended that Apprendi, Blakely, or Booker affected his sentence)


No opinions at this time.


For the list of the approximately 400 cases in which, on January 24, 2005, the Supreme Court
granted the petition for certiorari, vacated the judgment, and remanded to the courts of appeals (i.e., “GVR’ed” the cases), go here.


United States v. Morris, 2005 WL 80881, U.S. Dist. LEXIS 418 (D. Conn. Jan. 12, 2005)
(Underhill, J.) (noting that even if Blakely and Booker applied to cases on collateral review, court would have imposed same sentence whether Guidelines were mandatory or advisory)

Quirion v. United States, 2005 WL 83832, U.S. Dist. LEXIS 569 (D. Me. Jan. 14, 2005)
(Kravchuk, M.J.) (recommendation of magistrate judge that district court find that Booker should not be retroactive); see also Stevens v. United States, 2005 WL 102958, 2005 U.S. Dist. LEXIS 608 (D. Me. Jan. 18, 2005) (Kravchuk, M.J.) (same, when claim was not raised on direct appeal)

Baez v. United States, 2005 WL 106901, 2005 U.S. Dist. LEXIS 735 (S.D.N.Y. Jan. 19, 2005)
(Batts, J.) (in ruling on § 2255 motion filed well before Blakely and Booker were decided, court
considered sua sponte whether defendant could get relief under Booker and concluded that he could not because the mandatory minimum sentences to which he was subject exceeded the sentence calculated under the Guidelines)

United States v. Larry, 2005 U.S. Dist. LEXIS 853 (N.D. Tex. Jan. 19, 2005) (Kaplan, J.)
(because Booker stated that it applied to cases on direct review, and because both Blakely and Booker involve new rules of criminal procedure and do not fall within either Teague exception, Booker is not retroactive)

United States v. Johnson, ___ F. Supp. 2d ____, 2005 WL 170708, 2005 U.S. Dist. LEXIS
1053 (E.D. Va. Jan. 21, 2005) (Smith, J.) (Blakely and Booker do not apply retroactively; there is nothing in either decision indicated that Supreme Court meant to overrule the many cases holding that Apprendi is not retroactive)

Gerrish v. United States, ___ F. Supp. 2d ____, 2005 WL 159642, 2005 U.S. Dist. LEXIS
1013 (D. Me. Jan. 25, 2005) (Hornby, J.) (denying certificate of appealability following denial of § 2255 motion because Blakely and Booker are not retroactive)

Warren v. United States, 2005 WL 165385, 2005 U.S. Dist. LEXIS 989 (D. Conn. Jan. 25,
2005) (Thompson, J.) (denying first § 2255 motion based on Apprendi because decision announced new rule of law that was procedural and that did not meet either exception for new procedural rules in Teague v. Lane; Part II gives succinct general overview of habeas law and procedure)

* United States v. Siegelbaum, not currently on Westlaw, Lexis, or court’s website, but can be
accessed here. (D. Or. undated) (Panner, J.) (containing interesting discussion of retroactivity; ultimately concluding, without deciding retroactivity issue, that defendant was not entitled to relief because he got benefit of his plea bargain)


District courts

Hamlin v. United States, 2005 WL 102959, 2005 U.S. Dist. LEXIS 751 (D. Me. Jan. 19, 2005)
(Kravchuk, M.J.) (recommendation of magistrate judge denying second § 2255 motion because Supreme Court has not made Booker retroactive)

Courts of Appeals

In re Anderson, ___ F.3d ____, 2005 WL 123923, 2005 U.S. App. LEXIS 1097 (11th Cir.
Jan. 21, 2005) (denying application for leave to file second or successive petition in part because Supreme Court has not made Booker retroactive)


Godines v. Joslin, 2005 WL 177959 (N.D. Tex. Jan. 27, 2005) (Sanderson, M.J.) (in case where
petitioner had previously filed a § 2255 motion, recommending that motion made pursuant to 28 U.S.C. § 2241 motion be denied because it should be construed as § 2255 motion and petitioner did not demonstrate that savings clause of § 2255 applied where Booker has not been made retroactive)

Rodriguez v. Joslin, 2005 WL 178034, 2005 U.S. Dist. LEXIS 1103 (N.D. Tex. Jan. 27, 2005)
(Sanderson, M.J.) (in case where petitioner had previously filed a § 2255 motion, recommending that motion made pursuant to 28 U.S.C. § 2241 motion be denied because it should be construed as § 2255 motion and petitioner did not demonstrate that savings clause of § 2255 applied where Booker has not been made retroactive; further, court has no jurisdiction where Fifth Circuit has not issued order granting petitioner leave to file second § 2255 motion)

* Prepared for CJA panel attorneys in the Eastern District of Virginia by Frances H. Pratt,Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia.


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