Moving forward with Booker

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Lawyers representing clients in federal criminal cases need to be looking at factors beyond those listed in the federal guidelines when addressing the court about sentencing. That’s one of the important lessons following the U.S. Supreme Court’s recent sentencing-related decisions.

T. Christopher Kelly, who argued U.S. v. Booker before the U.S. Supreme Court, said lawyers need to realize that judges are no longer limited to the factors contained within the Federal Sentencing Guidelines.

On Jan. 12, a divided U.S. Supreme Court, in both Booker and U.S. v. Fanfan, found that the guidelines violated the constitutional right to a jury by having judges increase sentence ranges based on their own determination based on a preponderance of evidence. In Booker’s 5-4 ruling, the court determined that the guidelines were advisory.

Kelly, of Kelly & Habermehl SC in Madison, handled the Booker appeal at both the Seventh Circuit Court of Appeals and the U.S. Supreme Court. The Seventh Circuit appeal followed close on the heels of the U.S. Supreme Court’s decision in Blakely v. Washington, where the high court found the state’s sentencing guidelines violated the Sixth Amendment’s jury trial guarantee. The Blakely decision immediately raised questions about whether the Federal Sentencing Guidelines were constitutional.

"I’m pleased the court agreed with us that the sentencing guidelines, as they were being implemented, were unconstitutional," Kelly told the Wisconsin Law Journal.

Advisory Guidelines

He noted that making the guidelines advisory is an improvement. "It gives judges considerably more discretion to do what they think is fair and to tailor the sentence to the individual instead of just looking at a number on a chart and I think that’s better," Kelly said.

As a result of that decision, he noted, lawyers need to think about mitigating factors that were not previously identified in the guidelines. He observed, "If there are unusual circumstances with regard to a particular client, that would make a guideline sentence seem unjust, lawyers need to be prepared to bring that to a judge."

Following the release of the Blakely decision, federal appellate courts began trying to determine its effect on sentencing within the federal system. In Booker, the Seventh Circuit determined the guidelines were unconstitutional. However, they did not address the question of how the guidelines should be used or whether they should be used at all. Similar questions arose in appellate courts throughout the country.

At the start of its current session in early October, the U.S. Supreme Court heard Booker and Fanfan. Lawyers practicing in the federal criminal system have anxiously awaited an answer.

Holding Pattern

J.B. Van Hollen, U.S. Attorney for the Western District of Wisconsin, said he was not looking for the Supreme Court to rule one way or the other, but he was looking for it provide some guidance. Van Hollen explained that his office was in a "holding pattern" since the Blakely decision.

"We were just happy that there was an opinion," Van Hollen said of the Jan. 12 decision. "Our biggest problem was that before there was an opinion, we did not know what the status of the law was going to be. We were forced to spend a lot of our time and resources preparing for all the alternatives."

He anticipated that the guidelines would be found unconstitutional, at least in part, but there was no guarantee. That meant he and his staff had to proceed with investigations, charges and sentences recognizing that the court could do any of three things — find the guidelines unconstitutional, find them partially constitutional, or wholly constitutional.

"We had to vary our charging decisions, we had to vary our sentences and things like that to make sure that no matter what the outcome of the Supreme Court was that we would not have a bunch of appealable cases," Van Hollen said. "Now, we’re just overjoyed that there is a decision. We’re more than happy to proceed under the law as it has been found to exist by the Supreme Court."

Final Word?

Despite the anticipation that had built up around the Booker and Fanfan cases, they might not be the Supreme Court’s final word when it comes to sentencing.

Marquette University Law Associate Professor Michael O’Hear said the Booker decision leaves a number of things unanswered.

"A lot of people had looked to Booker to be the court’s last word on the Apprendi (v. New Jersey) line of cases," O’Hear said during a telephone interview. "Now that we actually have Booker, there are a lot of new questions that we can see that are opened by it."

For example, the Booker decision did not address what constitutes a reasonable sentence versus an unreasonable sentence, O’Hear explained. One question that came up prior to Booker, remains unanswered, he said. Some pre-Booker cases suggested "that criminal history is not covered by Apprendi and its requirement of jury fact-finding. Booker didn’t say anything about criminal history and the majority opinion written by Justice Stevens uses a lot of strong and absolute language that raises questions in the minds of some people about whether the court might be interested in revisiting the criminal history question," he said.

O’Hear also noted that district court judges already are responding differently to the U.S. Supreme Court’s decision. "The lower federal courts are already struggling with what Booker means," he said. "There’s already a very interesting and important split of opinion among two district court judges."

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The day after Booker was released, U.S. District Court Judge Paul G. Cassell, from Utah, issued a decision in U.S. v. James Joseph Wilson. Cassell indicated he would continue to use the guidelines even through they are only advisory. The judge indicated that he would only deviate from the guidelines under very unusual circumstances.

The next day, U.S. District Judge Lynn Adelman released his decision in U.S. v. Mark Ranum, which took a very different approach. Adelman, from the Eastern District of Wisconsin, noted that Booker tells judges to consider other factors at sentencing and that is what he intends to do. As a result, he departed from the guidelines’ recommended 37- to 46-month sentence for Ranum’s white collar crime. Adelman looked at a variety of elements including the fact that Ranum is the caregiver for his father, who suffers from Alzheimer’s disease, then sentenced him to one year plus one day.

O’Hear said, "I think we are going to probably see this split play out among lower courts for awhile, between judges who on the one side think Booker means basically business as usual — keep doing what we were before with the guidelines except that we have a bit more discretion in cases on the margin. Versus the Lynn Adelman view that Booker really changes everything, that Booker really marks a dramatic change in the way we do sentencing in the federal courts."

Van Hollen said he did not expect to see a significant change in the way judges in the Western District of Wisconsin approach sentencing.

"I don’t think things will change much at all," he predicted. "The judges here have shown a willingness to use the guidelines anyway. During the course of waiting for the Booker decision, our judges have been using them as advisory and I have every reason to believe that they will continue to do so."

Tony Anderson can be reached by email.