Sunday, June 11, 2006

Case o’ The Week: With Third’s Retreat, Ninth Becomes a (Staten) Island on Enhanced Sentencing Proof

In a decision that has sparked much blog commentary, Judge Berzon (left) and some helpful government concessions save the “clear and convincing” standard after Booker. United States v. Staten, __ F.3d __, 06 Cal. Daily Op. Serv. 6211 (9th Cir. June 7, 2006), decision available here.

Players: Hon. Marsha “Booker” Berzon.

Facts: Staten helped her boyfriend carry a microwave into one of two motel room she had rented. 06 Daily Cal. Op. Serv. 6211, 6216. Boyfriend had assembled meth-making gear there. Id. They were busted, and because of the “perceived hazardous environment” several motel rooms were evacuated. Id. Staten pleaded guilty. At sentencing, a government expert said meth labs were generally dangerous. Staten was hit with a (contested) fifteen offense level increase because the district court found the manufacture created a “substantial risk of harm to human life or the environment.” Id.

Issue(s): “[Staten] argues that the district court erred in determining that the evidence presented at the sentencing hearing and the facts established in the PSR support application of the section 2D1.1(b)(5)(B) substantial risk of harm enhancement.” Id. at 6219.

Held: “Conducting the requisite review of the post-Booker application of the Guidelines in this case, we conclude that the district court failed properly to take account of the appropriate factors when applying the Guidelines section 2D1.1(b)(5)(B) enhancement for creating a substantial risk of harm to human life or the environment.” Id. at 6215.

Of Note: In the Ninth Circuit blog, Sady ably chides the Court for what it didn’t do – tackle the important and unresolved “reasonable doubt” issue. Nonetheless, the Ninth’s pre-Booker “clear and convincing” standard thankfully survives: “We agree with the government that the clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guidelines sentence.” Id. at 6228.

This means that the Ninth’s admirable Restrepo line is still alive and kicking
– even though the Third Circuit case that fathered this jurisprudence was killed off by that Circuit on the very day that Staten was issued. See Berman’s blog here. Third Circuit defenders take solace, the ghost of Kikumura lives on.

Thankfully, unlike the defense bar prosecutors never talk to one another. Third Circuit AUSAs challenged enhanced proof requirements at sentencing after Booker – simultaneously Ninth Circuit AUSAs conceded enhanced proof requirements survive Booker. Nice. God help us all if DOJ and the USAOs ever discover e-mail.

Is federal sentencing law is a mess? You betcha: read Berzon’s candid acknowledgment of the standard of review chaos in the Ninth. Id. at 6220-21 & n.3. She ably identifies – then ducks – the problem.

How to Use: Prof Berman snags the best quote from Staten: “As the concern with accuracy remains critical, so does the concern that enhancements having a drastic impact be determined with particular accuracy.” Id. at 6320. If your client faces a big Guidelines bump with shaky evidence, read Sady’s post, raise reasonable doubt, then quote Staten heavily for the “clear and convincing” standard and the emphasis on accuracy in sentencing.

For Further Reading: “Those who can't do, teach. And, as Woody Allen says, those who can't teach, teach gym. And, as I say, those who can't teach gym become experts. That's who we look to for answers these days – the biggest friggin’ idiots in the world.” Roseanne Barr, here.

Roseanne’s right, and the Ninth agrees (sort of).

Last week, in Rios, the Ninth (Berzon) rejected government expert testimony as sufficient evidence to support a Section 924(c) conviction. See blog here. In Staten, the Ninth (Berzon) rejected the government expert’s testimony regarding the general dangers of meth labs as sufficient proof for the enhancement. Staten, 06 Cal. Daily. Op. Serv. at 6224-26.

Two Berzon cases may not a “trend” make, but it does seem the veneer on government experts is showing a little wear, of late.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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