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Booker case comes home

The ramifications of the U.S. Supreme Court’s decision last month in U.S. v. Booker, to future cases, and to those on collateral review, were explored last Thursday in Waukesha by a panel that included T. Christopher Kelly, the Madison lawyer, who successfully argued the Booker case, and Professor Douglas A. Berman, who runs the premier Blakely weblog, Sentencing Law and Policy, dedicated to "all things Blakely." In Booker, the court held the federal sentencing guidelines unconstitutional.

The panel also included William H. Theis, Chief Appellate Lawyer for the Federal Defender Program in the Northern District of Illinois, and Brian T. Fahl, Associate Federal Defender in Milwaukee, who worked on the Booker case with Kelly.

“There is no frivolous argument that a defense attorney can make now.”

Douglas A. Berman
Ohio State University

A freewheeling tone to confronting the as-yet undetermined effects of Booker was set early on by Berman, who declared that in light of Booker and Blakely v. Washington, 124 S.Ct. 231 (2004), "there is no frivolous argument that a defense attorney can make now."

One of the major issues left unresolved by Booker, the panelists noted, is the role that the guidelines are to have, now that they are only advisory, rather than mandatory, but still must be calculated as before.

Two schools of thought have emerged in the district courts: the first is that set forth in U.S. v. Wilson, (D.Utah, Jan. 13, 2005), treating the guidelines as defining a presumptive sentence; the second is that of Judge Lynn Adelman in Milwaukee that courts should consider all of the 18 U.S.C. 3553(a) factors, set forth in U.S. v. Ranum, (E.D.Wis., Jan. 19, 2005), and that the guideline sentence is merely one factor to consider.

Two other recent district court decisions have adopted the same approach as in Ranum, U.S. v. Meyers, 2005 WL 165314 (S.D.Iowa, Jan. 26, 2005); and U.S. v. West, 2005 WL 180930 (S.D.N.Y., Jan. 27, 2005), and Adelman issued another decision consistent with Ranum, as the discussion was being held: U.S. v. Jose Galvez-Barrios, No. 04-CR-14 (Feb. 2, 2005).

Kelly argued that Ranum was correct, and that Booker not only does not hold that the guideline determination is presumptive, but that to give the guideline calculation that effect may constitute a finding of fact in violation of the Sixth Amendment right to a jury, just as mandatory guidelines did in Booker.

Where a district court judge declares that he will not vary from the advisory guideline range, absent exceptional circumstances that would have supported a departure previously, the Sixth Amendment argument is available.

All the Booker court did say, Kelly observed, is that the sentencing court must "carefully consider" the guideline determination.

Another unresolved issue is the proper burden of proof and procedural protections to apply at sentencing hearings. Arguably, the procedural requirements of the Fourth, Fifth and Sixth Amendment should now be applied to any fact used at sentencing — right to confront witnesses, exclude consideration of suppressed evidence, etc.

In addition, Booker was not just about the Sixth Amendment right to a jury trial but about due process, and thus, the beyond a reasonable doubt standard is more appropriate than the preponderance standard that has been in use.

“If you are appealing a sentence you don’t like, you probably won’t be happy with the result.”

William H. Theis
Federal Defender Program

Berman noted that the Sentencing Reform Act sets forth no burden of proof, and that the preponderance of the evidence standard was adopted by the Sentencing Commission, rather than Congress, and is arguably subject to challenge. The greater the impact that a single finding of fact will have on a sentence, the stronger the argument that due process may require a higher burden of proof.

The standards of review on appeal are also not clear. The panelists noted Justice Stephen G. Breyer’s opinion for the majority on the issue of remedy states that sentences are to be reviewed for "reasonableness." However, Theis noted, 18 U.S.C. 3742(f)(2), which governs sentences not covered by the now-excised subsec. (e), refers to "plainly unreasonable" sentences.

Theis acknowledged that he does not know whether the statutory definition should control or the Breyer opinion, or even whether there is any difference, given the minimal number of court decisions reviewing subsec. (f)(2).

The best place to begin, in determining the appropriate standard for appellate review, Theis asserted, was the cases listed in the Breyer opinion that govern sentences imposed after revocation of supervised release, for which the guidelines have always been advisory.

However, Theis observed, "the message of those cases is — if you are appealing a sentence you don’t like — is that you probably won’t be happy with the result." The cases affirm the sentences at issue, provided the district court meets minimal procedural requirements: (1) recognizes that the guidelines are advisory rather than mandatory; (2) acknowledges the existence of sec. 3553(a) factors; (3) refers to some of those factors in light of the facts; and (4) does not exceed the maximum sentence.

If appellate courts apply the same standard of review to initial sentences, there will be no grounds for review unless the sentencing judges thinks they are mandatory, or refuses to recognize the sec. 3553(a) factors as relevant.

However, Theis set forth grounds for adoption of a different standard. First, he noted that the stakes in revocations of supervised release are always very low, with only a
few years at issue, while in initial sentencing, the stakes are decades in prison.

Theis acknowledged that, on the day before the panel, the Second Circuit became the first circuit to weigh in on the reasonableness issue, and made it clear that it had no intention of "micromanaging" sentences. U.S v. Crosby, No. 03-1675 (Feb. 2,2005).

Theis stated, however, that, in his experience, the Seventh Circuit has historically been more active than other circuits in reviewing sentences.

The second big issue for appellate review of sentences is retroactivity.

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For those defendants who have already filed one petition for collateral review, Theis advised the audience that they are stuck. The only ground for which a party could receive permission to even raise the issue would be if the U.S. Supreme Court explicitly stated that Booker is retroactive, which it has not.

For prisoners filing their first sec. 2255 motion, retroactivity was an option, until the Seventh Circuit decided U.S. v. McReynolds, No. 04-2520, on Feb. 2. In McReynolds, the Seventh Circuit held, "Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S.Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines, see id. at 2538 n.9, so Booker itself represents the establishment of a new rule about the federal system."

Theis advised the audience to raise the issue anyway, and not accept McReynolds as the last word on the issue.

Theis noted that the McReynolds decision resulted from a consolidation of three pro se petitions, that were not even sec. 2255 motions, but requests for certificates of appealability. Rather than merely declining to issue certificates of appealability, however, the court rushed in and decided the retroactivity issue, despite its complexity, and the absence of any briefing from counsel on the issue.

The limitlessness of the potential grounds that can be raised was the overriding theme of the conference. Berman declared, "We are working from the ground up, and the world looks very different from here than when working from the top down."

David Ziemer can be reached by email.

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