Roundtable Discussion Part II

Listen to this article

Background:

On March 30, the Wisconsin Law Journal and the Eastern District of Wisconsin Bar Association teamed up to provide a roundtable discussion on the ramifications of the U.S. Supreme Court decision in U.S. v. Booker. What follows is part one of the discussion. Pictured from left to right: Moderator Tony Anderson; T. Christopher Kelly, of Kelly & Habermehl S.C.; Dean A. Strang, Executive Director of Federal Defender Services of Wisconsin; and Marquette University Law School Professor Michael O’Hear.

In 1987, Congress created the Federal Sentencing Guidelines in an effort to bring uniformity to sentencing throughout the federal court system. Thirteen years later, the U.S. Supreme Court issued its decision in Apprendi v. New Jersey. In Apprendi the Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

Last year, the Supreme Court looked at Washington State’s Sen-tencing guidelines in Blakely v. Washington. Building on its decision in Apprendi, the Court found that the Washington statute, which allowed judges to impose sentences beyond the guidelines, was invalid because it violated the Sixth Amendment right to a jury trial.

Questions quickly arose regarding what impact that would have on the Federal Sentencing guidelines. Last October, the Supreme Court heard oral arguments in U.S. v. Booker and U.S. v. Fanfan. In January, the Court released its decision applying Blakely to the Federal Sentencing Guidelines. In two separate 5-4 majorities, the Court first held that the guidelines were mandatory and, therefore, were unconstitutional. Second, that the way to remedy this was to make them advisory.

In February, the Seventh Circuit Court of Appeals announced its standard for application of the plain-error standard for appeals under Booker. In U.S. v. Paladino, the Seventh Circuit found that, except in very limited circumstances, it would remand all sentences to the trial court for the limited purpose of determining whether the judge would impose a different sentence under the advisory system.

WISCONSIN LAW JOURNAL: Is it more likely post-Booker that letters collected from family and friends are going to be making a difference? Is there going to be a benefit to having them testify at sentencing?

“One of the things that we’re trying to get at in Booker is that it’s just wrong to punish somebody for a crime that the person hasn’t been charged with and hasn’t had an opportunity to defend against in front of a jury.” T. CHRISTOPHER KELLY

T. CHRISTOPHER KELLY: Are they going to make a difference? I think it depends on the individual judge. There are judges who will give more weight to letters than others. It’s a question of the judge’s sentencing philosophy. But certainly I think that there is more room for judges to consider facts beyond the bare facts that are laid out in the guidelines.

I don’t expect purely emotional appeals to sway a lot of judges, but I don’t expect that to happen in state court where there are no guidelines. On the other hand, it’s our obligation as defense attorneys to make the best case we can for our clients at sentencing.

If letter writers have valuable information about a defendant’s character, about his history, about the reasons or motivations that the defendant committed a particular crime and you want the judge to understand those facts and you don’t think that it’s necessarily going to come through effectively in your presentence report, then you need to have some way of getting that information to the judge. …

STEPHEN M. BISKUPIC: I’m not sure there had been a decrease in letters. In the system that was in place under the guidelines, you had a presentence report that was basically divided into two parts. The first part was the guideline calculation, the offense description. The second part was the defendant’s history. And the letters were always kind of considered a part of the history, which could be anything — whether they were in Boy Scouts or the like. The letters have always been effective to the extent under the guidelines that they could address certain factors in the first part to get a departure.

I’ll always remember in a run-of-the-mill drug case I had more than 10 years ago, a letter and a description in the presentence report. The defendant had run into a burning building and saved a child. It was almost by definition, wow, out of the heartland, extraordinary. The judge departed. The government did not appeal. It was kind of accepted by everyone.

“The difficult legal issue will not just be what is reasonable if it’s below the guidelines, but how far below the guidelines. A month? A year? Five years?” STEPHEN M. BISKUPIC

Whether a volume of letters can get you the same type of impact depends on what you’re addressing.

I’ve always viewed it as something that depends on a defense attorney’s strategy. You tend to see letters from defendants represented by the same attorneys because they view it as the proper vehicle. Others rely upon the statements in the presentence report.

HON. LYNN S. ADELMAN: Whether it’s letters or other material, I want to urge people on both sides to get it in as much before the actual date of sentence as possible. It’s not fun to be a judge and to come out for the sentence and then to hear all these arguments and have somebody submit a whole bunch of stuff right then.

Sentencing is harder after Booker for judges. There’s really more to consider. And you really need time to think about it.

One other little point about letters, which I think illustrates something about what was imperfect about the mandatory Guideline system. You get letters or you get information from people about a person who you’re sentencing, about their character. Then you’d get out there, and there would be this huge debate about two points for this and two points for that. And there would be … an incongruity or kind of a dissonance.

It would be a complete dissonance between what the people who were in the audience thought was happening, which is some sort of assessment of the seriousness of the offense and the seriousness of the offender, the kinds of things that the public intuitively thinks are sort of important factors when a person’s sentenced. Instead, there would be this often long debate about all these — at least to the public — arcane questions about two points for this and one point for that. …

We lost something when that was the whole focus of the sentence. …

BISKUPIC: That point was legitimate for both defendants and the government on behalf of the public. You have these two-day sentencing hearings, especially in some big high-profile case. The courtroom is packed with the public, and maybe reporters are there. And they’re just bewildered. They don’t know what’s going on.

It’s so anticlimactic that you get done with the meat of the guidelines and all of a sudden the judge declares the range is 27 to 33 months and the prosecutor stands up and demands 33 months. The defendant says 27. But the attorneys are sort of just going through the motions because the battle’s over.

It really does disserve the public that the hearings have spun out that way. Because the public does not understand it. And if they can’t understand it, they don’t understand why certain punishments relate to certain conduct. They can’t then choose to conform their conduct.

I think defendants have come to recognize, more dope, more time. You steal more money, you go to prison for a longer time. What they will never understand is leadership role or effect on the economy for antitrust cases or, you know, more than minimal planning. …

MICHAEL O’HEAR: If there is more room under Booker for introduction of evidence that goes to the good character of the defendant, I suppose the flip side is true as well. There’s more room under Booker for prosecutors to introduce victim-impact evidence, letters, testimony, whatever. I’ll be interested to see the extent to which prosecutors actually do that, both sort of offensively or defensively. Maybe the prosecutor holds that stuff back. But as soon as the defendant starts introducing the evidence about running into the burning building to save the child, then the prosecutor has a lot of victim-impact evidence waiting in reserve to use defensively in response to that.

WLJ: Are there any sentencing issues that defense attorneys should routinely raise in order to preserve them for appeal? For example, when the judge is finding the facts through the normal procedures, under Booker, it’s no longer preponderance of the evidence; it’s something higher. Should you routinely argue that, even though the preponderance standard was satisfied, the new standard is now higher and it was not met in this case? Arguments of that sort that should at least be considered by the defense attorney in every case.

DEAN A. STRANG: The scheme on this at least from a defense perspective is that some of our clients are Booker winners and some of our clients are Booker losers. … This starts with doing a guideline calculation. You have to assess pretty early in a case whether your client’s a likely winner or loser under Booker. If you have a probable Booker loser, it seems to me you do have to be prepared to say, "There are Fifth Amendment questions about the burden of persuasion that Booker left open."

There is a due process issue about whether Booker and advisory guidelines can be applied to someone whose crime was complete before Jan. 12, 2005, when Booker came down. And one can go back to Bouie v. City of Columbia, and Rogers v. Tennessee, and tease out a due process argument that essentially adopts as to the judicial branch the principles that the ex post facto clause imposes as limitations on the legislative branch. …

O’HEAR: Maybe another one to add to the checklist to think about is use of hearsay and Crawford [v. Washington] issues, preserving Crawford issues at sentencing.

KELLY: I agree with that. I also think that, although these maybe aren’t defense issues that should be routinely raised, one of the things that we’re trying to get at in Booker is that it’s just wrong to punish somebody for a crime that the person hasn’t been charged with and hasn’t had an opportunity to defend against in front of a jury and to be proved guilty beyond a reasonable doubt.

The remedy that the Supreme Court gave us in Booker doesn’t really do away with that harm. It does away with at least the Supreme Court’s perception of the constitutional harm of increasing a judge’s sentencing authority on the basis of facts that the judge finds. But the Supreme Court remedied that by making the guidelines advisory and kind of eliminating the Sixth Amendment problem. But it doesn’t eliminate the bigger problem, which is that judges will continue, if they use the guidelines, to punish people for crimes that the judge thinks that the person committed.

It’s important for the defense community, given the atmosphere of heightened sensitivity and heightened awareness of federal sentencing, to continue to attack the fundamental injustice of that, whether that is done by arguing through the Fifth Amendment that there should at least be a heightened standard of proof if a judge wants to base a sentence on uncharged conduct or whether it’s kind of a due process, the-tail-is-wagging-the-dog argument, because the bulk of the sentence is now based on uncharged conduct as opposed to the conduct that the defendant admitted or was proved at trial.

Those issues are out there. … There’s a lot more media attention to federal sentencing. A lot of the concerns about the injustice of the way federal sentencing has worked over the years is in the forefront of the public’s mind. That gives us an opportunity to try to attack those problems in other ways, and I would certainly urge the defense community to do that.

BISKUPIC: One of the arguments that’s being made that kind of surprised us as prosecutors was to attack the introduction of prior convictions, whether that should be presented to the jury as well.

The flip side of the Booker remedy was any bad thing about the defendant should go to the jury. You can put in any good thing you want through a letter, through a family member, and we’ll accept that. But anything that casts a bad light on a defendant, has to be proven to a jury.

I think the court has rejected that. Because the system administratively, I don’t believe, can handle a procedure by which the government must prove any kind of disparaging information. How do you judge what’s disparaging? And how do you let the victim have their say? They don’t understand the rules of evidence when they stand up at sentencing and want to talk about how a crime impacted them. So these arguments will be coming. …

WLJ: The issue of reasonableness has popped up a few times. What considerations go into determining the reasonableness standard?

“The important thing for a judge, if a judge wants to get upheld on this — and I think counsel can contribute to this too — is to make sure that you explain in as much detail as possible why you’re doing what you’re doing.” HON. LYNN S. ADELMAN

ADELMAN: That’s more of an appellate court issue, although, reasonableness is certainly something that we have to consider. I think it shows that the new post-Booker system is certainly not going to be a return to the kind of pre-guideline system.

There was virtually no review under the pre-guideline system. Now, district court judges are going to be reviewed. The system obviously can’t be as strict a review as the system of review for downward departures, which was very, very strict. No one really anticipated how strict it was going to be.

"Reasonableness" is a word that courts deal with all the time. In fact, there’s a whole law of sentencing which exists now which is the law of when district courts revoke supervised release. Guidelines have been advisory ever since they started. And the sentences on revocations have been reviewed for reasonableness.

But if the review is too strict and a deviation from the guidelines is viewed as almost presumptively questionable, then I think you’re back to the problem that you had before Booker came down. Once you calculate the guidelines and judges are making a lot of fact findings, unless there’s some flexibility there, then you’ve sort of created the same problem. So I don’t know how they’re going to define "reasonableness."

The important thing for a judge, if a judge wants to get upheld on this — and I think counsel can contribute to this too — is to make sure that you explain in as much detail as possible why you’re doing what you’re doing. In every case that I have where I think that there might be some issue [where a sentence] isn’t within the guidelines, I write as much as it takes to explain why I’m doing what I’m doing.

BISKUPIC: The difficult legal issue will not just be what is reasonable if it’s below the guidelines, but how far below the guidelines. A month? A year? Five years? I think the Court of Appeals is going to be in the sentence review business for quite a while until they start defining these things.

A second issue that I think is out there that the court’s going to have to address somewhere down the line is the relationship of co-defendants. If you start with a guideline system that tries to put all the defendants in the whole country in a certain scale, what about in an individual courtroom on a particular case where for Defendant A you find that a reasonable sentence is 30 months even though the guideline minimum is 40. Let’s say you base it more on the guy’s history as opposed to the acts.

Then the next defendant comes in who doesn’t have as good of a background but is less culpable. Maybe … you’re faced with a guy who cooperates but he’s above the food chain. Now you sentence the lower-level guys. And this low-level guy didn’t have any information to give us, and now he’s feeling the brunt of things.

I think that’s going to be a real interesting situation for the Court of Appeals to address. I know it’s really bothered judges. It sometimes bothers prosecutors, because you’re just kind of stuck. …

So what do we do? Is it reasonable within the case to give that guy some type of derivative benefit so that we don’t have an in-case injustice or disparity? If that happens, obviously that will change the dynamic that the guidelines had kept in place for quite a while.

“If there is more room under Booker for introduction of evidence that goes to the good character of the defendant, I suppose the flip side is true as well. There’s more room under Booker for prosecutors to introduce victim-impact evidence, letters, testimony, whatever.” MICHAEL O’HEAR

O’HEAR: I see at least two really interesting questions that the courts of appeals will have to face as they try to define what "reasonableness" is. One question is something I’ve already alluded to, which is how to deal with these variations from the guidelines by the district court judge when the district court judge says, "This is a normal case; this is a heartland case; but I disagree with the Sentencing Commission’s policy choice."

In effect, I think that we’ve already seen some decisions which at least implicitly are sending that message. So one question I have is whether appellate courts are going to find those sorts of decisions, per se, unreasonable or whether the appellate courts will take seriously that possibility that district court judges can reexamine policy choices made by th
e Commission.

The second thing that I will be interested to see will be the extent to which the appellate courts develop their own parallel set of sentencing guidelines under the rubric of this reasonableness standard. …

If the appellate courts go that route, I expect there will be at least some district court judges who would be very grateful for that sort of guidance. On the other hand, the appellate courts may decide to treat the analysis as very case-specific, very fact-specific, and limit holdings very narrowly to the particular facts and circumstances of particular cases without providing broader guidance.

WLJ: What’s going on at the trial level with cases that are being sent back for plain error?

BISKUPIC: We’re just starting to get them. I checked with Michelle Jacobs, our Criminal Chief in charge of appellate work, who said that we’re still in that stage. The 7th Circuit Court of Appeals has issued what they’ve called limited remand on plain-error cases, whether or not the issue had not been previously raised. So you’re left with [the question of whether] the judge would have issued a different sentence. So they’re sending the case back for judges to tell them … "I would have imposed a different sentence if the guidelines hadn’t been mandatory." … Those remand orders are just starting to be issued. But, I’m unaware of anyone having ruled as of yet.

“Some of our clients are Booker winners and some of our clients are Booker losers.” DEAN A. STRANG

STRANG: So am I.

BISKUPIC: It’s just this legal limbo. If you had a defendant whose case was pending on appeal with a sentencing issue, arguably, coming under the rubric of Booker, you’re entitled to have that case go back to the sentencing judge and have the sentencing judge say whether or not he or she would have imposed a different sentence if the guidelines had not been mandatory.

If the judge says, "Yes, I would have," then it’s presumed that they were and they’re going to remand the whole case. If that judge says, "No, I’m not," then it’s going to stay on appeal. And I assume, will deny the appeal then. …

WLJ: Can a district court judge vary from a guideline sentence based on a factor that is expressly forbidden by the Sentencing Guidelines or solely on the judge’s determination that a provision is generally too harsh?

BISKUPIC: They can try. I think there will be your easy unreasonable sentence. … Prohibited factors in the guidelines are there generally for pretty good reasons.

They don’t want this to be an issue. And I think it will be very, very difficult for a judge to say in an individual case why that factor should be. If they do, I’m pretty certain the government will be appealing.

STRANG: Although this is the new life Section 3661 now says that consideration of the character and nature of the defendant shall be unlimited. As Judge Adelman pointed out earlier, subchapter 5H and its prohibited considerations arguably collided with 3661. So as to the first part of your question, can a judge impose a sentence different than the guideline range on the basis of a factor that was a prohibited consideration under the guidelines, I think the answer is, yes, subject to persuading three judges later, if necessary, that it was reasonable to do so.

BISKUPIC: But some of those are 5H factors that would be, not outright prohibited under the old system, but would have been ordinarily not appropriate grounds for departure. So you’re probably still going to have to make the same type of record. The door may have been creaked open a little bit further. But as Judge Adelman said, as long as you can justify it, you’re going to have to say what it is and why this is; although it’s not ordinarily a good reason, it is in this case.

STRANG: And nothing about 3661, either when it was enacted in 1984 or now, trumps the little bit of constitutional superstructure back there under an equal protection component of the Fifth Amendment that race or gender are not appropriate reasons to distinguish between defendants.

WLJ: I want to ask our panelists whether you have any final thoughts.

BISKUPIC: I would say to the defense attorneys that are here, the post-Booker posture of the government is to defend what ordinarily would be the guidelines. The reason that we feel that’s appropriate, even though it comes from Washington as well, is that that is our role in the system.

Just as it is for defense attorne
ys to push and make arguments for the lowest possible sentence, it is our duty to resist that push with an eye towards uniformity, that similarly situated defendants receive the same sentences and that the uniqueness that each defendant and defense attorney want to put forward to the Court … that we feel that that is our duty and our goal in the cases.

Obviously, nobody wants to scrap the guidelines entirely. So the presumption of a prosecutor in a particular case is to abide by the guidelines. We still obviously recognize the legal standard, and the door is open a little more. But you’re going to have to do your work to get the prosecution to go along with that.

ADELMAN: I’d just reiterate what I said before. I think under the new system it’s a lot more work for everybody. But if the lawyers and the judges do their work, it will be a better system.

KELLY: I’m repeating myself, too. But I think there are more opportunities now for defense attorneys to present mitigation evidence in a meaningful way at a sentencing hearing, and there are also opportunities now to seize upon some of the dissatisfaction that you see when you read Justice [Antonin] Scalia’s decision in Blakely. With the way federal sentencing has gone, a new reliance upon presentence reports and the hearsay that’s in the presentence, the unconfronted hearsay, it’s just as important as ever to challenge the reliability of those statements and to argue that there are other constitutional rights at play here and to be as creative as we can to try to make federal sentencing more fair, which I think is the ideal state toward which we’re all striving.

O’HEAR: I have two things. First of all, stay tuned. Booker was not the end of the story. … The Supreme Court’s decision is the start of the story. I think we’re going to see the lower federal courts and probably the Supreme Court returning to Booker many times in the coming years to deal with the difficult and fascinating questions that are raised by Booker.

	Related Links Roundtable Part I

We’ve touched on some of the open issues here today — the status of fact finding relating to prior convictions, use of hearsay at sentencing, standard of proof at sentencing, use of nominally prohibited or discouraged offender characteristics at sentencing, and so forth. There are many open issues right now for courts to wrestle with.

Having said that, I’ll reiterate a point that many of the panelists made earlier. Most likely, we will see incremental changes in the federal sentencing system and not truly revolutionary changes in the federal sentencing system. My instincts are that the effect of Booker will be similar to the effect of the Supreme Court’s Koon v. U.S., [518 U.S. 81 (1996)] decision. The Koon decision established the Abuse of Discretion standard for review of departures under the old mandatory guidelines. After the Supreme Court issued Koon, there were those who believed that it was the end of the Sentencing Guideline system as we knew it then. As it turned out, following Koon there were some small increases in departure rates, but not truly dramatic changes in departure rates. The early Sentencing Commission data on the deviations from the guidelines after Booker suggests a similar — small but not revolutionary — change in sentencing practices.

Part I of this article can be viewed here.

Tony Anderson can be reached by email.