Wednesday, January 12, 2005

We are no Booker Fanfan.

Initial thoughts and litigation strategies related to the Supreme Court's decision on January 12, 2005 in Booker/Fanfan.

Decisions available here. (124 pages in .pdf)

Some in the defense bar are apparently (and inexplicably) viewing the Steven's majority decision as a victory. I -- and many other defense folks -- view the Breyer majority decision as a major setback. Without delving into the philosophical details, here are some proposed litigation issues for the very narrow window we have before Congress acts.

* Prohibited factors now OK: The guidelines have listed a number of prohibited or discouraged factors. These include age, education and vocational skills, mental and emotional conditions, physical condition, employment record, family ties and responsibilities, role in the offense, military, civic, and charitable service, and lack of guidance as a youth. See USSG § 5H11.1- H1.12 (Nov. 2004). These should be fair game for sentencing now that the guidelines are "advisory." Also consider other factors, such as surrender of suppression motions, economic costs of incarceration, and other costs of conviction (such as deportation). If the guidelines are advisory, all of these factors should be fair game for arriving at the sentence.
The resulting sentence should be lower than the guideline range -- because the guideline range did not take into account these taboo factors.

Get "prohibited" or "discouraged" factors included in the PSR! There is now no bar to this, if the guidelines are advisory.

* "Custodial Zones" Gone?: If the guidelines are merely advisory, then the zones on the sentencing table (Zones A-D) should also be advisory. See USSG § 5B1.1 (Nov. 2004). Hence, is should theoretically be possible to get a non-custodial sentence in Zone D under advisory guidelines.

* Post-plea, pre-sentence cases: If you have a good judge, and you have sympathetic facts, you should be able to withdraw out of a plea agreement based on the intervening decision in Booker. In the Ninth Circuit, look at United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004) (permitting withdrawal of plea in light of intervening authority).

* Standard of proof at sentencing: Booker/Fanfan is silent on the standard of proof necessary for the judge to find a factor at sentencing. For example, what is the standard of proof necessary to find leadership role, and to impose a higher sentence because of it? We can argue preponderence, but some worry that this is now just the "reasonableness" standard from the appellate review findings of the case. One suggestion is that we dust off that old circuit line that began to develop higher standards. Here's a quote about the preponderance standard from one such Ninth Circuit case:

The Ninth Circuit held that preponderance standard is required for factors that would enhance a defendant's sentence but emphasized that such a standard is a "meaningful" one: it is a "misinterpretation of the preponderance test that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted." United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991) en banc.

Also look at United States v. St. Julian, 922 F.2d 563, 569 & n1 (10th Cir. 1990) (court should consider whether higher standard warranted; United States v. Kikumura, 918 F.2d 1084, 1100-02 (3d Cir. 1990) (clear and convincing standard required.).
As explained in an old Guidelines outline, "The court in Restrepo suggested that a clear and convincing standard might be appropriate when the relevant conduct would dramatically increase the sentence." Restrepo, 946 F.2d at 661.
More recently, the Ninth has articulated the six factors to be considered in considering whether the "clear and convincing" standard applies:
Valensia has failed to discuss the factors that should beconsidered in determining whether an enhanced sentence isextremely disproportionate to the initial sentencing guidelinerange. While we have recognized that the Due Process Clauserequires the application of a clear and convincing evidencestandard when an enhancement based upon uncharged con-duct has an extremely disproportionate effect on the length ofa defendant's sentence, we have not articulated a bright linetest for the application of this rule. Instead, we have consid-ered the disparity between the sentence that could have beenimposed under the initial sentencing guideline range and thesentence actually imposed on a case-by-case basis, withoutrelying on any single factor as controlling. This totality of thecircumstances approach to this question is consistent with theSupreme Court's instruction that "[d]ue process is flexibleand calls for such procedural protections as the particular situ-ation demands." Morrissey v. Brewer, 408 U.S. 471, 481(1972).[5] In discussing the extremely disproportionate effect of anenhanced sentence, we have identified the following factors:
One. Does the enhanced sentence fall within the maximum sentence for the crime alleged in the indictment? 4 See Restrepo II, 946 F.2d at 657, 662; Sanchez , 967 F.2d at 1385.
Two. Does the enhanced sentence negate the presumption of innocence or the prosecution's burden of proof for the crime alleged in the indictment? See Restrepo II, 946 F.2d at 657.
Three. Do the facts offered in support of the enhancement create new offenses requiring separate punishment? See Restrepo II, 946 F.2d at 657.
Four. Is the increase in sentence based on the extent of a conspiracy? See Harrison-Philpot, 978 F.2d at 1523-24.
Five. Is the increase in the number of offense levels less than or equal to four? See Hopper, 177 F.3d at 833.
Six. Is the length of the enhanced sentence more than double the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence? See Mezas de Jesus, _______ F.3d at _______; Hopper, 177 F.3d at 833.
Of course, the real problem is that it is now difficult to gauge which factors a district court is relying upon to impose a greater sentence, and how those factors increased the sentence from what range. Phrased differently, in discretionary sentence who is to say what factor "more than doubled the sentence," when the initial guideline range is discretionary?

* De facto 11(c)(1)(C) [locked] agreements: Before Booker, we could run de facto Fed. R. Crim. Pro. 11 (c)(1)(C) agreements that locked the court into the sentence by agreeing to only a specific offense conduct alleged, and pleading to only that amount. (For example, by admitting only to a specified fraud amount). Today's Breyer decision decision pretty-much explictly rejects that approach. See United States v. Booker, at 14 (Breyer, J.) (rejecting Judge Stevens' approach because "any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge enirely.")

If you've got one of those sweet Blakely deals running, take a close look and re-evaluate ASAP.
* Ex post facto considerations: What if you have the deal mentioned above, or you have a judge who will relish the chance at a punitive sentence unchecked by the guideline ranges? Is is possible to argue that the old guideline regime/system should apply, under the "One Book" rule and ex post facto considerations? Can the defense waive the consitutional limitations the guidelines and asked to be sentenced under the old, mandatory provisions on an ex post facto argument? Hard to say -- the Key Biscayne group batted this around a bit, but arrived at no decision on it. Thoughts are welcome.

* Slavish devotion to the guidelines: One thing that the Key Biscayne Booker working group considered was slavish devotion to the guidelines by district court judges. If the court follows the guidelines too closely -- never deviating from the guideline calculations -- they are a de facto mandatory system. We considered making this argument, and beginning to keep stats on specific judges to bring challenges if the judges never sentence below the guideline range.

* Drug cases: AFPD Dan Blank emphasizes that Booker doesn't change Buckland/Thomas on drug type and quantity, and those are enhancement facts that increase statutory maximums (instead of increasing a guideline range). Hence, it should still be possible to do a "Thomas" plea (at least, in the Ninth Circuit).
* 5K Cooperation Agreements: Paul Rashkind and DC folks note that this give the judge the ability the decide the extent of a departure under USSG § 5K1.1. In other words, as long as the government moves for a sentence for cooperation below the mandatory minimum the judge (under advisory guidelines) can depart as far as she'd like for the cooperation. (Note that the government will, however, still need to make the initial motion to get below a mandatory minimum under 18 USC § 3553(e), which wasn't affected by Booker.

* Waiver of Apprendi protections.: The Florida Defender appellate unit is worried about the many cases it has on appeal, where the clients will get thrown to the wolves on remand with only "advisory" guidelines. Is it possible that the constitutional infirmity to the USSG is only if the defendant asserts it? In other words, can a defendant waive the Sixth Amendment bar to mandatory guidelines and seek to be sentenced under mandatory guidelines? This would obviously tie into ex post facto concerns as well.

"Be careful what you wish for" is ringing particularly true here -- there are many judges before whom we will be very nostalgic for mandatory guidelines, now that the spectre of disretionary sentencing has arrived. This ex post facto theory, or defense invoking mandatory guidelines, may be our only hope in these hostile forums.

Steven Kalar, Senior Litigator Fed. PD ND Cal.


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